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RESOLUTION 01-01-2015

DIGEST Civil Procedure: Expert Witness Fees May Be Permitted on Memorandum of Costs Amends California Rules of Court, rule 3.1700 to clarify that recoverable expert witness fees may be claimed and included on a memorandum of costs. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends California Rules of Court, rule 3.1700 to clarify that recoverable expert witness fees may be claimed and included on a memorandum of costs. This resolution should be approved in principle because it provides a clear, streamlined process to claim expert witness fees recoverable by statute or under contract. Presently, there is no specific mechanism for a prevailing party to claim expert witness fees among their recoverable costs. A party may file a cost memorandum, but there is no place on the cost memorandum to include expert witness fees. Importantly, this resolution does not expand whether a party may recover expert witness fees. This resolution ensures a procedural mechanism for enforcing a party’s entitlement to expert witness fees that is already provided by contract or statute. If a party includes expert witness fees on a costs memoradum, and are not entitled to such fees, the opposing party may bring a motion to tax these and any other costs inappropriately claimed on a memorandum of costs. While the majority of published California decisions on this issue state that it is appropriate for a prevailing party to claim expert witness fees on a memorandum of costs, other courts disagree. This leaves a prevailing party with no specific procedural mechanism through which to obtain these fees. This resolution provides a specific procedural mechanism to claim – and thus, oppose – expert witness fees through a memorandum of costs. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Rule of Court Rule 3.1700 to read as follows: Rule 3.1700 (a) Claiming costs 1 (1) Trial costs 2 A prevailing party who claims costs, including discretionary or mandatory expert witness 3 fees authorized to be awarded to the prevailing party by contract or statute, must serve and file a 4 memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment 5 or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of 6 written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, 7

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whichever is first. The memorandum of costs must be verified by a statement of the party, 8 attorney, or agent that to the best of his or her knowledge the items of cost are correct and were 9 necessarily incurred in the case. 10 (2) Costs on default 11 A party seeking a default judgment who claims costs must request costs on the Request 12 for Entry of Default (Application to Enter Default) (form CIV-100) at the time of applying for 13 the judgment. 14 (b) Contesting costs 15 (1) Striking and taxing costs 16 Any notice of motion to strike or to tax costs must be served and filed 15 days after 17 service of the cost memorandum. If the cost memorandum was served by mail, the period is 18 extended as provided in Code of Civil Procedure section 1013. 19 (2) Form of motion 20 Unless objection is made to the entire cost memorandum, the motion to strike or tax costs 21 must refer to each item objected to by the same number and appear in the same order as the 22 corresponding cost item claimed on the memorandum of costs and must state why the item is 23 objectionable. 24 (3) Extensions of time 25 The party claiming costs and the party contesting costs may agree to extend the time for 26 serving and filing the cost memorandum and a motion to strike or tax costs. This agreement must 27 be confirmed in writing, specify the extended date for service, and be filed with the clerk. In the 28 absence of an agreement, the court may extend the times for serving and filing the cost 29 memorandum or the notice of motion to strike or tax costs for a period not to exceed 30 days. 30 (4) Entry of costs 31 After the time has passed for a motion to strike or tax costs or for determination of that 32 motion, the clerk must immediately enter the costs on the judgment. 33

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem: There is no procedure in existing law on how to claim expert witness fees. Unfortunately, this has led to inconsistent decisions in both the trial and appellate level as to the proper procedure. Rule 3.1702, which requires a noticed motion, only applies to attorneys’ fees claims. Expert witness fees are not typically considered a subset of attorney fees; rather, attorney fees and expert witness fees are viewed as distinct and independent subsets of the costs of litigation. (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1148.) Code of Civil Procedure §1034 provides that allowable prejudgment costs must be claimed in accordance with the rules adopted by the Judicial Council. Rule 3.1700 is the only rule of court that addresses the procedure for recovering prejudgment costs other than attorneys’ fees. Some cases have allowed parties to use the Memorandum of Costs procedure to claim recoverable expert witness fees. (See, Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (4th Dist. 2010) 185 Cal.App.4th 1050, 1066-1067 (review denied) [Memorandum of Costs required under contractual agreement to award prevailing party expert witness costs]; Holman v. Altana Pharma

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US, Inc. (2010) 186 Cal.App.4th 262, 276—277 [where party filed only a memorandum of costs seeking expert witness fees in a FEHA case under both CCP §998 and Government Code §12965(b)].) But there are others that imply the motion procedure is appropriate. (See, Anthony v. City of Los Angeles (2008) 166 Cal.App.4th 1011, 1016.). It is important to note that the current Memorandum of Costs-Worksheet has a specific space for expert witness fees claimed under Code of Civil Procedure §998, even though those fees are discretionary. The Solution: This clarifies that expert witness fees authorized by contract or statute can be claimed on a memorandum of costs. This gives litigants and the courts certainty as to a correct procedure which will reduce erroneous decision and appeals. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Melissa L. Bustarde, Esq., Mayfield Bustarde, LLP, 462 Stevens Ave., Suite 303, Solana Beach, CA 92075, (858) 793-8090 RESPONSIBLE FLOOR DELEGATE: Melissa L. Bustarde, Esq.

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RESOLUTION 01-02-2015 DIGEST Attorneys: Temporary License for Attorney Spouses of Active Duty Military Personnel Adds California Rules of Court, rule 9.49 to create a program for temporary admission to practice law for attorney spouses of active duty military service members stationed in California. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This Resolution adds California Rules of Court (“CRC”), rule 9.49 to create a program for temporary admission to practice law for attorney spouses of active duty military service members stationed in California. This Resolution should be approved in principle because it supports military personnel by helping them keep their families together during their active duty postings in California, and is similar to the program which grants a temporary license to legal service attorneys. However, the Resolution should be amended to add restrictions to this new temporary license before it is entered into the legislative program. California does not have licensing reciprocity with any other state; therefore, to practice law in California, one must hold a California license.The few circumstances under which an attorney who is not licensed by California can practice law do not include a temporary licence for attorney spouses of active duty military personnel posted to California. The current exceptions include admission pro hac vice (restricted to a specific action, governed by CRC, rule 9.40); registered in-house counsel (restricted to a specific employer, no California license / admission required, registration with the California Bar Association required per State Bar Rules 3.370 – 3.377, and governed by CRC, rule 9.46); and registered legal service counsel (no California license / admission required, limited to three years, required registration with the California Bar Association per State Bar Rules 3.360 – 3.367, and governed by CRC, rule 9.45). It is important to support military personnel by helping them keep their families together during their active duty postings in California. To further this goal, military spouse attorneys should be granted a temporary license to practice in California while his/her spouse is posted to California on active duty. This Resolution is based on the above-described programs which allow temporary licensing of legal service attorneys and in-house counsel in California, and those adopted by other states for attorney spouses of active duty military service members. This Resolution also contains suitable restrictions and safeguards. For example, the attorney spouse with the temporary license would have to (a) be supervised by a licensed California attorney who has at least four years active practice experience during the first year of registration under the program; (b) complete 25 hours of California MCLE within the first year of registration and the same MCLE required of California attorneys thereafter; (c) be subject to discipline by way of suspension of privileges upon suspension or disbarrment by another jurisdiction.

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However, Resolution Committee’s recommendation is premised on its suggestion that this Resolution be amended before it enters the legislative program to include some additional restrictions; e.g., (a) the temporary license would be limited to two years, which gives the attorney spouse time to take and pass the California bar exam; (b) the supervision by a licensed California attorney who has at least four years active practice experience would continue for the entire duration of the temporary license; and (c) the attorney spouse would be subject to California’s disciplinary autority under California law. This Resolution is similar to Assembly Bill No. 296 (2014-2015 Reg. Sess.) (“AB 296”), which proposed to address the same issues through amendment of Business and Professions Code section 6062. Among other things, AB 296 required attorney spouses to take and pass the first available California bar exam. AB 296 passed the Assembly in this form, but was gutted and amended in the Senate Judiciary Committee into a bill related to trusts (not attorney lisencing), which was then enacted in its amended form. There appears to have been some tension between the Military Spouse JD Network (which opposed the requirement that the attorney spouse would have to take and pass the first available California Bar Exam), and the California State Bar (which would not agree to a temporary license without bar passage). A compromise would be a short temporary license with a bar passage requirement. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that the Judicial Council add California Rules of Court, Rule 9.49, to read as follows: Rule 9.49. Registered Military Spouse Attorneys. 1 (a) Purpose. Due to the unique mobility requirements of military families who support 2 the defense of our nation, an attorney who is a spouse or a registered domestic partner of an 3 active duty member of the United States Uniformed Services (“service member”) may be 4 required to relocate to this jurisdiction when the service member spouse is stationed within this 5 jurisdiction. This rule is intended to provide attorney spouses of service members an option to 6 obtain a temporary license to practice law within the State of California under this rule for the 7 period in which the service member is stationed in California. 8 (b) Definitions. The following definitions apply in this rule: 9 (1) “Military Spouse Attorney” is an active member in good standing of the bar of the 10 bar of a United States state, jurisdiction, possession, territory, or dependency and who is a spouse 11 or registered domestic partner of a Service Member. 12 (2) “Service Member” means an active duty member of the United States Uniformed 13 Services who has been ordered stationed within California. 14 (3) “Spouse” shall have the ordinary meaning accorded by California law, and includes 15 Civil Union. 16 (4) "Active member in good standing of the bar of a United States state, jurisdiction, 17 possession, territory, or dependency" means an attorney who: 18 (A) Is a member in good standing of the entity governing the practice of law in each 19 jurisdiction in which the member is licensed to practice law; 20

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(B) Remains an active member in good standing of the entity governing the practice of 21 law in at least one United States state, jurisdiction, possession, territory, or dependency other 22 than California while practicing law as a registered Military Spouse Attorney in California; and 23 (C) Has not been disbarred, has not resigned with charges pending, or is not suspended 24 from practicing law in any other jurisdiction. 25 (c) Scope of practice. Subject to all applicable rules, regulations, and statutes, and as 26 specifically required under this rule, an attorney practicing law under this rule may practice law 27 in California in all forms of legal practice that are permissible for a member of the State Bar of 28 California. 29 (d) Requirements. For an attorney to practice law under this rule, the attorney must: 30 (1) Be an active member in good standing of the bar of a United States state, jurisdiction, 31 possession, territory, or dependency, and be a spouse or registered domestic partner of a Service 32 Member; 33 (2) Register with the State Bar of California and file an Application for Determination of 34 Moral Character; 35 (3) Meet all of the requirements for admission to the State Bar of California, except that 36 the attorney: 37 (A) Need not take the California bar examination or the Multistate Professional 38 Responsibility Examination; and 39 (B) May practice law while awaiting the result of his or her Application for 40 Determination of Moral Character; 41 (4) Comply with the rules adopted by the Board of Governors relating to the State Bar 42 Registered Military Spouse Attorney Program; 43 (5) Practice law under the supervision of an attorney who is a member in good standing 44 of the State Bar of California for the first year of practice under this rule; 45 (6) Abide by all of the laws and rules that govern members of the State Bar of California, 46 including the Minimum Continuing Legal Education (MCLE) requirements; 47 (7) Satisfy in his or her first year of practice under this rule all of the MCLE 48 requirements, including ethics education, that members of the State Bar of California must 49 complete every three years; and 50 (8) Not have taken and failed the California bar examination within five years 51 immediately preceding application to register under this rule. 52 (e) Application. To qualify to practice law as a registered Military Spouse Attorney, the 53 attorney must: 54 (1) Register as an attorney applicant and file an Application for Determination of Moral 55 Character with the Committee of Bar Examiners; 56 (2) Submit to the State Bar of California a declaration signed by the attorney agreeing 57 that he or she will be subject to the disciplinary authority of the Supreme Court of California and 58 the State Bar of California and attesting that he or she will not practice law in California other 59 than as provided under this rule, except that, if so qualified, the attorney may, while practicing 60 under this rule, simultaneously practice law as registered in-house counsel; and 61 (3) Submit to the State Bar of California a declaration signed by a qualifying supervising 62 attorney attesting that the applicant will be supervised as specified in this rule and the 63 supervising attorney assumes professional responsibility for any work performed by the 64 applicant under this rule. The applicant need not be directly employed by the qualifying 65 supervising attorney. 66

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(f) Duration of practice 67 (1) An attorney may practice for no more than a total of nine years under this rule. This 68 period shall be extended where the attorney has, prior to the expiration of nine years, applied to 69 take the California Bar Examination and the extension shall expire upon either the failure to 70 receive a passing score on the bar examination or upon admission to the California Bar as a 71 member in good standing. 72 (2) The license to practice law under this rule shall terminate sixty (60) days after any 73 one of the following events or such other period as specified in the enumerated events: 74 (A) The Service Member is no longer a member of the United States Uniformed 75 Services; 76 (B) The Military Spouse Attorney’s marriage, civil union, or registered domestic 77 partnership is dissolved; 78 (C) The service member receives a permanent transfer outside the jurisdiction, except 79 that if the service member has been assigned to an unaccompanied or remote assignment with no 80 dependents authorized, the Military Spouse Attorney may continue to practice pursuant to the 81 provisions of this rule until the service member is assigned to a location with dependents 82 authorized; or 83 (D) One year after the death, permanent disability, or disability resulting in discharge of 84 the service member. 85 (3) In the event that any of the events listed in paragraph (f)(2)(A)-(D) occur, the 86 attorney licensed under this rule shall notify the State Bar of California of the event in writing 87 within thirty (30) days of the date upon which the event occurs. If the event occurs because the 88 service member is deceased or disabled, the attorney shall notify the State Bar of California 89 within one hundred eight (180) days of the date upon which the event occurs. 90 (4) Each attorney admitted to practice under this rule shall report to the State Bar of 91 California, within thirty (30) days, or such other time as provided: 92 (A) Any change in bar membership status in any jurisdiction of the United States or in 93 any foreign jurisdiction where the attorney has been admitted to the practice of law; 94 (B) The initiation of any disciplinary proceedings by any federal or state court or agency; 95 or 96 (C) Immediately upon the imposition of any permanent or temporary professional 97 disciplinary sanction by any federal or state court or agency 98 (5) An attorney's authority to practice under this rule shall be suspended when the 99 attorney is suspended and revoked when the attorney is disbarred in any jurisdiction of the 100 United States, or by any federal court or agency, or by any foreign nation before which the 101 attorney has been admitted to practice. 102 (g) Application and registration fees. The State Bar of California may set appropriate 103 application fees and initial and annual registration fees to be paid by registered Military Spouse 104 Attorneys. 105 (h) State Bar Registered Military Spouse Attorney Program. The State Bar may 106 establish and administer a program for registering California Military Spouse Attorneys under 107 rules adopted by the Board of Governors of the State Bar. 108 (i) Supervision. To meet the requirements of this rule, an attorney supervising a Military 109 Spouse Attorney: 110 (1) Must be an active member in good standing of the State Bar of California; 111

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(2) Must have actively practiced law in California and been a member in good standing 112 of the State Bar of California for at least the two years immediately preceding the time of 113 supervision; 114 (3) Must have practiced law as a full-time occupation for at least four years; 115 (4) Must not supervise more than two registered Military Spouse Attorneys concurrently; 116 (5) Must assume professional responsibility for any work that the registered Military 117 Spouse Attorney performs under the supervising attorney's supervision; 118 (6) Must assist, counsel, and provide direct supervision of the registered Military Spouse 119 Attorney in the activities authorized by this rule and review such activities with the supervised 120 attorney, to the extent required for the protection of the client; 121 (7) Must read, approve, and personally sign any pleadings, briefs, or other similar 122 documents prepared by the registered Military Spouse Attorney before their filing, and must read 123 and approve any documents prepared by the registered Military Spouse Attorney for execution 124 by any person who is not a member of the State Bar of California before their submission for 125 execution; and 126 (8) May, in his or her absence, designate another attorney meeting the requirements of 127 (1) through (7) to provide the supervision required under this rule.128

(Proposed new language underlined; language to be deleted stricken.) PROPONENT: San Diego County Bar Association STATEMENT OF REASONS The Problem: Active duty members of the United States Armed Forces are often required to relocate to California as part of their military service and this imposes burdens on the member’s spouse and family, inclusive of the spouse’s need to find new employment in California. Where the spouse of the service member is an attorney licesned to practice law in another state or U.S. territory, this presents the added problem of seeking admission to practice law in California. Currently, the attorney spouse would need to take and pass the attorney bar examination, if admitted to the other jurisdiction and actively engaged in the practice of law for at least four years, or take the general bar examination, and must pass the moral character background. This process takes a minimum of eight months from the deadline for submission of the application to take the bar examination until results are posted, and often takes upwards of one year, or nearly one quarter of a service member’s normal 4-year deployment order. This Solution: This Resolution adds rule 9.49 to the California Rules of Court to create a program for temporary licensing of Military Spouse Attorneys while their spouse or registered domestic partner is stationed in California. It is based on similar programs in California allowing for the temporary licensing of legal service attorneys and in-house counsel, and similar programs adopted by other states for attorney spouses of active duty military service members. It provides a maximum period of nine years which would accommodate two 4-year active duty assignments of the spouse in California and allowes for a short transition period after the spouse leave the military, is deceased or disabled, or there is a dissolution. It requires supervision by a licensed California attorney, with at least four years active practice experience, during the first year of registration under the program. It requires completion of 25 hours of California MCLE within

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the first year of registration and the same MCLE required of California attorneys thereafter. It provides for recirprocal discipline by way of suspension of privileges under the rule upon suspension or disbarrment by another jurisdiction. IMPACT STATEMENT The proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Darin L. Wessel, Manning & Kass, Ellrod, Ramirez, Trester, LLP, 550 W. C Street, Suite 1900, San Diego, CA 92101; (619) 515-0269; dlw@manningllp.com. RESPONSIBLE FLOOR DELEGATE: Darin L. Wessel

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RESOLUTION 01-03-2015 DIGEST Rules of Court: Citation to Unpublished Opinions Amends California Rules of Court, rule 8.1115 to allow citation to unpublished opinions as persuasive authority where it is significantly similar in facts and not overruled. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: Similar to Resolution 09-01-2005 which was approved as amended and Resolution 09-02-2005 which was withdrawn. Reasons: This resolution amends California Rules of Court, rule 8.1115 to allow citation to unpublished opinions as persuasive authority where it is significantly similar in facts and not overruled. This resolution should be disapproved because citation to unpublished opinions should either be allowed or disallowed and not based on subjective criteria of what constitutes “significantly similar facts” and because of other practical problems created by the language as drafted. Current law provides that an unpublished opinion may only be cited when it is law of the case, res judicata, collateral estoppel or is relevant to a criminal or disciplinary action affecting the same defendant. In 2005, the Conference approved as amended Resolution 09-01-2005 which recommended the rule allow citation to unpublished opinions as necessary to support a Petition for Review. The Judicial Council did not adopt that recommended change. Allowing citation to unpublished opinions involves countervailing concerns. On the positive side, parties can cite decisions that directly address the specific legal issue or are closer to being factually on “all fours.” In those circumstances, an unpublished opinion constitutes authority that is more persuasive than current secondary authority which may be cited under current rules. On the negative side, courts and parties are concerned with being inundated by a multitude of citations with only tangential relevance. Further, there is no ready means of ascertaining the continuing validity of the findings in unpublished opinions as they are not Shepardized and are not directly referenced when the Supreme Court disapproves a line of published authority. Recognizing potential opposition to a blanket rule allowing citation to unpublished opinions, the proponent attempts to craft a compromise by providing the opinion must not be “otherwise not overruled” and must involve application of a rule of law “to a set of facts significantly similar to the facts at issue in a case.” The overall problem is that this exception is likely to swallow the general no citation rule and the highly subjective determination of what is “significantly similar” will lead to tangential disputes over rule violations. Second, Supreme Court opinions specifically overrule published opinions, not unpublished opinions, and unless publishing companies expand headnote services to track unpublished opinions, there is no ready means to ascertain the continuing validity of unpublished opinions.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that the Judicial Council amend California Rule of Court Rule 8.1115 to read as follows: Rule 8.1115 (a) Unpublished opinion 1 Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate 2 division that is not certified for publication or ordered published must not be cited or relied on by 3 a court or a party in any other action. 4 (b) Exceptions 5 An unpublished opinion may be cited or relied on: 6 (1) When the opinion is relevant under the doctrines of law of the case, res judicata, or 7 collateral estoppel; or 8 (2) When the opinion is relevant to a criminal or disciplinary action because it states 9 reasons for a decision affecting the same defendant or respondent in another such action. or 10 (3) When the opinion, that is otherwise not overruled, is cited for its persuasive authority 11 on how a rule of law is applied to a set of facts significantly similar to the facts at issue in a case. 12 (c) Citation procedure 13 A copy of an opinion citable under (b) or of a cited opinion of any court that is available only in 14 a computer-based source of decisional law must be furnished to the court and all parties by 15 attaching it to the document in which it is cited or, if the citation will be made orally, by letter 16 within a reasonable time in advance of citation. 17 (d) When a published opinion may be cited 18 A published California opinion may be cited or relied on as soon as it is certified for publication 19 or ordered published. 20

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem: The rules regarding publication prevent litigants from citing to California opinions that have applied rules of law in matters factually similar to their own matters. This prevents litigants from properly analogizing and distinguishing case law. It causes litigants to rely on published cases that are factually dissimilar even though there are available non-published opinions that regard factually similar cases that apply the very same rules of law at issue in a given case. It also encourages litigants to make improper representations to the Court that a published opinion is the best available reference to guide the Court on a particular application of law to facts simply because another opinion, which may be more factually similar to the matter at issue, is not published and therefore non-citable. Also, while a Court of Appeal may not rely on non-published California cases, the Rules of Court do not prohibit citation to non-published federal cases, which may be cited as persuasive, although not binding, authority. (Airline Pilots Association International v. United Airlines, Inc. (4th Dist. 2014) 223 Cal.App.4th 706, 724 fn. 7.) This loophole demonstrates that the status of an opinion as being unpublished or

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published has little to do with encouraging citation to the best most applicable authority. The inability to cite to non-published California judicial opinions promotes improper legislating by the judicial branch and inhibits needed transparency in the judicial system in how it renders opinions. The Solution: Litigants will be allowed to cite to non-published California opinions in the same manner that they may now cite to non-published federal opinions. The ability to cite to non-published cases will give litigants and Courts greater knowledge in how rules of law have been applied to various factual scenarios. This in turn will encourage consistency in rulings. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Melissa L. Bustarde, Esq., Mayfield Bustarde, LLP, 462 Stevens Ave., Suite 303, Solana Beach, CA 92075, (858) 793-8090 RESPONSIBLE FLOOR DELEGATE: Melissa L. Bustarde, Esq.

SECTION COMMENTS TO RESOLUTION 01-03-2015 THE STATE BAR OF CALIFORNIA’S COMMITTEE ON APPELLATE COURTS DISAPPROVE Under California Rules of Court, rule 8.1115, an unpublished opinion may not be cited or relied on by a court or a party in any other action, subject to two narrow exceptions: (1) When the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel; or (2) When the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action. This Resolution would add a third exception: “(3) When the opinion, that is otherwise not overruled, is cited for its persuasive authority on how a rule of law is applied to a set of facts significantly similar to the facts at issue in a case.” In its “Statement of Reasons,” the Resolution makes an argument against rule 8.1115. Many others have made this and similar arguments over the years, and there have been developments over the past decade. Since 2006, Federal Rules of Appellate Procedure, rule 32.1, has permitted the citation of unpublished federal judicial opinions. (Rule 32.1 applies only to unpublished opinions issued on or after January 1, 2007. The citation of unpublished opinions issued before January 1, 2007 is governed by the local rules of the circuits.) Also, in 2007, California Rules of Court, rule 8.1105 (previously numbered rule 976) was amended to modify the presumption and bases for publication of opinions. Among other things, the amendments (1) provided that an

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opinion should be published if the opinion meets one or more of the criteria specified in the rule, replacing the prior presumption against publication of an opinion unless it meets the criteria specified in the rule; and (2) clarified and expanded the criteria that the Courts of Appeal should consider when deciding whether to certify an opinion for publication. The State Bar of California’s Committee on Appellate Courts would have no objection to re-visiting the discussion about the pros, cons, and propriety of rule 8.1115 itself, against the backdrop of these developments. But this Resolution does not purport to address the no-citation rule directly. Rather, it purports to establish an “exception” to the rule, an exception that would apply when the facts in the unpublished opinion are “significantly similar to the facts at issue in [the present] case.” We have no doubt that, for good or for ill, this exception would swallow the no-citation rule and effectively nullify rule 8.1115. A lawyer who has discovered a favorable unpublished opinion will almost certainly be able to argue that the facts in the two cases are “substantially similar” in some essential respect, and any appellate justice who wants to rely on an unpublished opinion could easily use this “exception” to do so. Disclaimer This position is only that of the State Bar of California’s Committee on Appellate Courts. This position has not been adopted by the State Bar’s Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Committee activities relating to this position are funded from voluntary sources.

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RESOLUTION 01-04-2015 DIGEST Clerk’s Default Judgments: Removing Clerk’s Notation Requirement Deletes California Rules of Court, rule 3.1806 to eliminate the requirement that a written agreement forming the basis for a default judgment be surrendered to input notations upon entry of judgment. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution deletes California Rules of Court, rule 3.1806 to eliminate the requirement that a written agreement forming the basis for a default judgment be surrendered to input notations upon entry of judgment. This resolution should be disapproved because although it is accurate to state that the clerk should not require an original signed document before entering a clerk’s judgment on an account stated or open book account complaint, the rule does not apply to that type of case. Rule 3.1806 applies to cases where there is a written instrument that forms the basis for the case, which would be brought on a breach of contract theory, for example, based on a promissory note or other negotiable instrument. The purpose of the rule is to make sure that when a judgment is entered, the original writing is endorsed to reflect the merger of the obligation into the judgment, to avoid any question of the vitality of the writing itself thereafter. (See, e.g., Kahn v. Lasorda’s Dugout, Inc. (2003) 109 Cal.App.4th 1118 [holding a court could review a copy of an original promissory note at a default prove-up hearing, and has discretion to waive the requirement of the original note, if it is satisfied with the explanation for the plaintiff’s failure to produce it].) The case makes clear that the clerk does not have such discretion, in the context of entry of a clerk’s judgment on default under Code of Civil Procedure section 585, subdivision (a). The proponent cites HSBC Bank Nevada, N.A. v. Aguilar (2012) 205 Cal.App.4th Supp. 6 for the proposition that original documents are not needed to obtain a judgment of default by clerk. However, this case does not abolish rule 3.1806 because it is a credit card case. The opinion notes, at page 10, that the rule applies to negotiable instruments, not to open book account and account stated cases, for example those based on credit card or charge accounts that revolve. It does not disagree with the rule, much less offer a basis for the rule’s deletion.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that the Judicial Council delete California Rules of Court, Rule 3.1806 to read as follows: Rule 3.1806. In all cases in which judgment is rendered upon a written obligation to pay money, the 1 clerk must, at the time of entry of judgment, unless otherwise ordered, note over the clerk's 2 official signature and across the face of the writing the fact of rendition of judgment with the 3 date of the judgment and the title of the court and the case. 4

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Santa Clara County Bar Association STATEMENT OF REASONS The Problem: Existing law requires a court clerk to make a notation on a written obligation to pay money in all cases when judgment is rendered upon such an obligation. However, as the Administrative Office of the Court’s August 2013 report on Default Prove Ups confirms, clerks in many courts deny every request for a clerk’s entry of default judgment, as a matter of course, if the requesting party fails to submit the “original” written obligation to pay money, relying on checklists that cite to this rule. Nothing in the statutes or California Rules of Court pertaining to default judgments require the submission of such a document. The rule was adopted in 1949 and now appears to be outdated. It is unclear what purpose this rule serves in the age of photocopy machines, scanners, and other widely-available technologies that are capable of reproducing identical copies. In most cases, rejecting default judgment prove-up packets on this ground conflicts with case law. The Solution: This resolution would remove the requirement that a clerk make a notation a written obligation to pay money, bringing the rules in line with existing case law. (See HSBC Bank Nevada, N.A. v. Aguilar (2012) 205 Cal. App 4th Supp. 6.) IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Deborah L. Goodman, Leonidou & Rosin Professional Corporation, 777 Cuesta Drive, Suite 200, Mountain View, CA 94040, tel: (650) 691-2888, email: dgoodman@alr-law.com or DeborahLGoodman@outlook.com RESPONSIBLE FLOOR DELEGATE: Deborah L. Goodman

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COUNTRER ARGUMENTS TO RESOLUTION 01-04-2015

SAN DIEGO COUNTY BAR ASSOCIATION The SDCBA Delegation urges disapproval of Resolution 01-04-2015. This resolution should be disapproved because there is good reason to require the original written obligation be presented to the clerk prior to the clerk entering a Clerk’s default judgment. First, requiring presentation of the original prevents the potential of judgments based on forged or altered agreements which may be missed by a single clerk entering a Clerk’s default judgment. Likewise, the judgment operates to supersede the written obligation as the enforceable decree and leaving the original note or contract in place and in the hands of the judgment creditor leaves open the possibility of multiple enforcement actions and multiple judgments on the same obligation. BAR ASSOCIATION OF NORTHERN SAN DIEGO Rule 3:1806 is designed to comply with the requirement that upon payment or judgment the original Negotiable Instrument (i.e. Promissory Note), must be marked on its face to reflect cancellation (see, e.g., Corp. Code section 3604). It does not apply to open book accounts such as credit card accounts, as was held in HSBC Bank Nevada N.A. v. Aguilar (2012) 205 Cal.App.4th Supp., cited by proponent. If clerks are routinely applying this Rule to cases other than promissory notes and other written obligations to pay money, then the solution is to be found in the administrative office of that court, not a removal of the requirement for cancellation. Removing the rule entirely opens the door to collection abuse.

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RESOLUTION 02-01-2015

DIGEST Professional Responsibility: Exception to Attorney-Client Confidentiality Amends Business and Professions Code section 6068 to permit an attorney to reveal confidential information about any act, not just a “criminal act,” that is reasonably likely to cause death or substantial bodily harm. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Business and Professions Code section 6068 to permit an attorney to reveal confidential information about any act, not just a “criminal act,” that is reasonably likely to cause death or substantial bodily harm. This resolution should be disapproved because it broadens an appropriately narrow exception to attorney-client confidentiality. Until 2004, California had absolutely no exceptions to the requirement of attorney-client confidentiality set forth in Business and Professions Code section 6068, subdivision (e). This was in marked contrast to all other jurisdictions in the country, which follow the ABA Model Rules of Professional Conduct. California is the only state that does not follow the ABA rules. The ABA rules have long allowed an exception to confidentiality in order to prevent death or substantial bodily injury. The original purpose of section 6068, subdivision (e)(2) was to accord California law with that of other jurisdictions by creating a narrow exception to attorney-client confidentiality which would allow, not require, an attorney to disclose his/her client’s act to prevent death or substantial bodily harm. As originally drafted, the bill did not include the word “criminal,” but it was included to allay concerns by some legislators that that lawyers would find it too easy to “snitch off” their clients, and that it would become a too-common occurrence. This original reasoning for restricting this exception to attorney-client confidentiality to criminal acts is still sound, even though this has not become a common occurrence. Just because it is not common does not mean that the restriction should be lifted. This Resolution would also require the following changes to the Rules of Professional Conduct, rules 3-100(B) and 3-100(C): change “a criminal act” to “an act.” This change would be considered and recommended by the State Bar Commission for the Revision of the Rules of Professional Conduct, and approved by the California Supreme Court. (See www.ethics.calbar.ca.gov.) Similar to Resolution 08-02-2015, which amends section 6068 subdivision (e)(2). TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Business & Professions Code Section 6068 to read as follows:

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RESOLUTION 02-02-2015

DIGEST Public Contracts: Prohibiting State from Contracting with Vendors That Discriminate Adds Public Contract Code sections 10295.35, 10421.5, and 10427 to prohibit state agencies from contracting for goods or services of $100,000 or more with a contractor that discriminates on the basis of gender identity in the provisions of benefits. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution adds Public Contract Code sections 10295.35, 10421.5, and 10427 to prohibit state agencies from contracting for goods or services of $100,000 or more with a contractor that discriminates on the basis of gender identity in the provision of benefits. This resolution should be approved in principle because California has established public policy against discriminating in the provision of benefits to same sex partners and spouses, in addition to general protections for transgender individuals under the Unruh Civil Rights Act and the Fair Employment and Housing Act. Senator Mark Leno (D-11) introduced Senate Bill No. 703 (2015-2016 Reg. Sess.) (SB 703) upon which this resolution is based. According to Senator Leno, although California has established protections against discrimination generally, and in the provision of benefits for same sex partners and spouses specifically, companies contracting with the State of California may not be extending these protections based on gender identity. Senator Leno’s bill and this resolution prohibit a state agency from contracting for services in the amount of $100,000 or more with companies that discriminate in the provision of benefits on the basis of gender identity. Public Contract Code section 10295.3 codifies California’s exiting non-discrimination provisions. This resolution contemplates scenarios in which the contractor is willing to provide the benefit but is unable to do so. Specifically, this resolution provides that a contractor who does not provide benefits as required could avoid being deemed discriminatory in the provision of benefits if the contractor pays the actual costs incurred in obtaining the benefit. Additionally, if a contractor is unable to provide a certain benefit after taking reasonable measures to do so, the contractor would not be deemed to discriminate in the provision of benefits. Until recently, this resolution was identical to SB 703, however the bill was recently amended to delete provisions authorizing any person to file a complaint under the bill, and requiring the Department of General Services (DGS) to investigate any complaints it receives. The amendments would also clarify that the bill does not create any new enforcement responsibility for DGS or any other contracting agency.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to add California Public Contract Code section 10295.35, 10421.5, and 10427 to read as follows: §10295.35 (a) (1) Notwithstanding any other law, a state agency shall not enter into any contract for 1 the acquisition of goods or services in the amount of one hundred thousand dollars ($100,000) or 2 more with a contractor that, in the provision , discriminates between employees on the basis of 3 an employee’s or dependent’s actual or perceived gender identity, including, but not limited to, 4 the employee’s or dependent’s identification as transgender. 5 (2) For purposes of this section, “contract” includes contracts with a cumulative amount 6 of one hundred thousand dollars ($100,000) or more per contractor in each fiscal year. 7 (3) For purposes of this section, an employee health plan is discriminatory if the plan is 8 not consistent with Section 1365.5 of the Health and Safety Code and Section 10140 of the 9 Insurance Code. 10 (4) The requirements of this section shall apply only to those portions of a contractor’s 11 operations that occur under any of the following conditions: 12 (A) Within the state. 13 (B) On real property outside the state if the property is owned by the state or if the state 14 has a right to occupy the property, and if the contractor’s presence at that location is connected to 15 a contract with the state. 16 (C) Elsewhere in the United States where work related to a state contract is being 17 performed. 18 (b) Contractors shall treat as confidential, to the maximum extent allowed by law or by 19 the requirement of the contractor’s insurance provider, any request by an employee or applicant 20 for employment benefits or any documentation of eligibility for benefits submitted by an 21 employee or applicant for employment. 22 (c) After taking all reasonable measures to find a contractor that complies with this 23 section, as determined by the state agency, the requirements of this section may be waived under 24 any of the following circumstances: 25 (1) There is only one prospective contractor willing to enter into a specific contract with 26 the state agency. 27 (2) The contract is necessary to respond to an emergency, as determined by the state 28 agency, that endangers the public health, welfare, or safety, or the contract is necessary for the 29 provision of essential services, and no entity that complies with the requirements of this section 30 capable of responding to the emergency is immediately available. 31 (3) The requirements of this section violate, or are inconsistent with, the terms or 32 conditions of a grant, subvention, or agreement, if the agency has made a good faith attempt to 33 change the terms or conditions of any grant, subvention, or agreement to authorize application of 34 this section. 35 (4) The contractor is providing wholesale or bulk water, power, or natural gas, the 36 conveyance or transmission of the same, or ancillary services, as required for assuring reliable 37 services in accordance with good utility practice, if the purchase of the same cannot practically 38 be accomplished through the standard competitive bidding procedures and the contractor is not 39

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providing direct retail services to end users. 40 (d) (1) A contractor shall not be deemed to discriminate in the provision of benefits if the 41 contractor, in providing the benefits, pays the actual costs incurred in obtaining the benefit. 42 (2) If a contractor is unable to provide a certain benefit, despite taking reasonable 43 measures to do so, the contractor shall not be deemed to discriminate in the provision of benefits. 44 (e) (1) Every contract subject to this chapter shall contain a statement by which the 45 contractor certifies that the contractor is in compliance with this section. 46 (2) The department or other contracting agency shall enforce this section pursuant to its 47 existing enforcement powers. 48 (3) (A) If a contractor falsely certifies that it is in compliance with this section, the 49 contract with that contractor shall be subject to Article 9 (commencing with Section 10420), 50 unless, within a time period specified by the department or other contracting agency, the 51 contractor provides to the department or agency proof that it has complied, or is in the process of 52 complying, with this section. 53 (B) The application of the remedies or penalties contained in Article 9 (commencing with 54 Section 10420) to a contract subject to this chapter shall not preclude the application of any 55 existing remedies otherwise available to the department or other contracting agency under its 56 existing enforcement powers. 57 (f) Nothing in this section is intended to regulate the contracting practices of any local 58 jurisdiction. 59 (g) This section shall be construed so as not to conflict with applicable federal laws, 60 rules, or regulations. In the event that a court or agency of competent jurisdiction holds that 61 federal law, rule, or regulation invalidates any clause, sentence, paragraph, or section of this code 62 or the application thereof to any person or circumstances, it is the intent of the state that the court 63 or agency sever that clause, sentence, paragraph, or section so that the remainder of this section 64 shall remain in effect. 65 66 §10421.5 67 (a) Any person may file a complaint with the department alleging that a contractor is in 68 violation of, or a contract or other transaction has been entered into in violation of, any provision 69 of this chapter. 70 (b) The department shall investigate any complaints it receives pursuant to this section. 71 72 §10427 73 The department shall maintain an easily accessible list on the department’s Internet Web 74 site of contracts for the acquisition of goods or services in the amount of one hundred thousand 75 dollars ($100,000) or more that are entered into on or after January 1, 2016. 76

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bay Area Lawyers for Individual Freedom STATEMENT OF REASONS The Problem: Companies based in California are required to provide health care benefits to transgender employees but companies in 41 other states have no such requirement. An in-state

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contractor bidding on a government contract could be underbid by such an out-of-state contractor. California taxpayer funds can be used to benefit companies that discriminate against transgender employees. The Solution: This resolution would prohibit a state agency from entering into contracts for the acquisition of goods or services of $100,000 or more with a contractor that discriminates between employees on the basis of gender identity in the provision of benefits. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION This resolution tracks the language of SB 703 introduced by Senator Mark Leno on February 27, 2015. AUTHOR AND/OR PERMANENT CONTACT: Denise Bergin, Weaver Austin Villeneuve & Sampson LLP, 555 12th St., Ste 1700, Oakland, CA 94607; 510-267-4142; dbergin@wavsip.com RESPONSIBLE FLOOR DELEGATE: Denise Bergin

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RESOLUTION 02-03-2015 DIGEST Corporations Code: Limited Liability Corporation Dissolution on 50% Vote Amends Corporations Code section 17707.01 to allow members holding 50% or more interest in a limited liability company to initiate dissolution proceedings. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Corporations Code section 17707.01 to allow members holding 50% or more interest in a limited liability company to initiate dissolution proceedings. This resolution should be approved in principle because a 50% voting interest is substantial, and particularly in cases of a two-person owned entity, a 50% interest owner should not be able to thwart dissolution desired by the other 50% voting interests for want of an absolute majority. A corporation may voluntarily elect to dissolve and wind-up business by vote of shareholders holding 50% or more of the voting power. (See Corp. Code, § 1900, subd. (a).) But under current law, an absolute majority vote of the membership is required for a limited liability company —which sometimes consists of no more than two people — to dissolve the limited liability company (LLC) and wind-up activities. (Id., § 17707.01, subd. (b).) In the case of a 50-50 standoff, the only way to seek dissolution would be by the member(s) bringing a costly and time-consuming action in court for a judicial dissolution. That is the remedy under the “oppression doctrine,” more commonly applicable to closed corporations, when managers or members in control of the LLC abuse their authority or position to the detriment of the other members who are unable to garner a majority vote. Mindful that in an LLC made up of a small number of members, a 50-50 vote may be all that can be realistically expected, particularly under acrimonious circumstances. The proposed measure would provide empowerment and flexibility by crediting a 50% vote of the voting interests as sufficient to effect a dissolution. This is the same rule that already applies for corporations. The resolution will also eliminate the prospect of understandable surprise to those seeking dissolution, after organizing or becoming involved in an LLC, to realize that unlike other business organizations, to dissolve the LLC may will require —absent going to court — an absolute majority vote, even if the LLC consists of only two members. Importantly, the resolution would only count the vote of the voting interests, not just the members. This is reasonable and fair for the larger stakeholders in the LLC. If the members do not wish to permit dissolution based on a 50% vote, they can change this by provision(s) in the articles of organization or written operating agreement specifying interests of the membership.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Corporations Code section 17707.01 to read as follows: §17707.01 A limited liability company is dissolved, and its activities shall be wound up, upon the 1 happening of the first to occur of the following: 2 (a) On the happening of an event set forth in a written operating agreement or the articles 3 of organization. 4 (b) By the vote of 50 percent or more a majority of the voting interests of the members of 5 the limited liability company or a greater percentage of the voting interests of members as may 6 be specified in the articles of organization, or a written operating agreement. 7 (c) The passage of 90 consecutive days during which the limited liability company has no 8 members, except on the death of a natural person who is the sole member of a limited liability 9 company, the status of the member, including a membership interest, may pass to the heirs, 10 successors, and assigns of the member by will or applicable law. The heir, successor, or assign of 11 the member's interest becomes a substituted member pursuant to subdivision (d) of Section 12 17704.01, subject to administration as provided by applicable law, without the permission or 13 consent of the heirs, successors, or assigns or, those administering the estate of the deceased 14 member. 15 (d) Entry of a decree of judicial dissolution pursuant to Section 17707.03. 16

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem: The current LLC dissolution statute requires a majority of the voting powers of the LLC members in order to initiate voluntary dissolution proceedings. However, the LLC vehicle is used for many small business in California, many of which are owned by 2 members with equal voting power (i.e., 50/50). When one wants to dissolve the company and the other does not, that leaves the LLC in a stalemate and often results in litigation that these small businesses simply cannot afford for a decree of judicial dissolution. The Solution: This harmonizes the LLC dissolution statute with the corporate voluntary dissolution statute (Corporations Code §1900(a)) to require only 50% of the voting power to initiate voluntary dissolution. The language allowing members to select a higher voting percentage in its articles of organization or operating agreement is retained. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known.

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AUTHOR AND/OR PERMANENT CONTACT: Melissa L. Bustarde, Esq., Mayfield Bustarde, LLP, 462 Stevens Ave., Suite 303, Solana Beach, CA 92075, (858) 793-8090 RESPONSIBLE FLOOR DELEGATE: Melissa L. Bustarde, Esq.

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RESOLUTION 02-04-2015 DIGEST Supervision and Credit Under the State Bar’s Law Office Study Program Amends Business and Professions Code section 6060 to increase the number of students an attorney may supervise and how credit is earned if one fails to pass the law students examination. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Business and Professions Code section 6060 to increase the number of students an attorney may supervise and how credit is earned if one fails to pass the law students examination. This resolution should be approved in principle because the proposed changes would allow more students to benefit from the Law Office Study Program (LOSP), as well as properly dock or prohibit the earning of study credit for failing to timely pass the law student exam. This resolution aims to provide greater, and more affordable, access to the study of law through the LOSP. The LOSP accomplishes these goals by providing that individuals seeking to practice law can become eligible to take the bar exam after studying for four years under the supervision of an attorney or judge. One step taken by this resolution would be to allow an attorney to supervise up to four students at one time, thereby increasing the number of “spots” available to those who wish to take advantage of the LOSP. In addition, LSOP participants must take and pass the law students’ exam (i.e., the “baby bar”) at some point after completion of his or her first year of law study. Currently, if one fails to pass within the first three administrations upon becoming eligible to take the exam, then he or she loses all credit earned beyond the first year. This resolution would change that slightly. Instead of losing all credit beyond one year, an individual would only lose one year from his or her total, and be prohibited from earning further credit until passage of the exam. This is a fairer method and is less punitive than the current rule. In addition to the amendments discussed above, the statement of reasons identifies further changes that it contends the resolution would make, such as allowing virtual study from out of state and eliminating the five-year practice requirement for supervising attorneys. As these aspects are not in the resolution as drafted, approval in principle is recommended. Were such changes to be added by amendment, the current recommendation would no longer apply. The purpose of the LOSP is to learn the law “on the job.” The idea that learning the intricacies of California law via office study while located in one’s home and/or in a different state is not reasonable. Similarly, someone with less than five years of post-Bar experience would not be in a position to properly supervise another who is engaged in legal study.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend Business and Professions Code section 6060(e)(2)(B) and section 6060(h)(1) to read as follows: §6060(e)(2)(B) In a law office in this state and under the personal supervision of a member of the State 1 Bar of California who is, and for at least the last five years continuously has been, engaged in the 2 active practice of law. It is the duty of the supervising attorney to render any periodic reports to 3 the examining committee as the committee may require. The supervising attorney may supervise 4 up to four students at one time. 5 6 §6060(h)(1) 7 Have passed a law students’ examination administered by the examining committee after 8 completion of his or her first year of law study. Those who pass the examination within its first 9 three administrations upon becoming eligible to take the examination shall receive credit for all 10 law studies completed to the time the examination is passed. 11 Those who do not pass the examination within its first three administrations upon 12 becoming eligible to take the examination, but who subsequently pass the examination, shall 13 receive credit for one year of legal study only shall lose one year of credit for legal study, and 14 may not accumulate additional credit until he or she passes the examination. 15

(Proposed new language underlined; language to be deleted stricken) PROPONENT: National Lawyers Guild – San Francisco Bay Area Chapter STATEMENT OF REASONS The Problem: Californian’s access to affordable legal services is severely threatened by the rising cost of law school. New lawyers are burdened with debts that prevent them from offering affordable services to low and moderate income clients. Rising tuition costs also reduce access to law school for aspiring lawyers from low‐income communities, undermining efforts to diversify the legal profession. In response to this crisis, there is a growing demand for affordable and practice‐based legal education through the State Bar’s Law Office Study Program (LOSP). Through the LOSP, aspiring lawyers may become eligible to take the bar exam after studying for four years under the supervision of an attorney or judge. Unfortunately, restrictive provisions of the Business & Professions Code prevent an enormous number of lawyers from supervising a LOSP student. As a result, a rapidly growing number of aspiring lawyers are struggling to find lawyers eligible to supervise their LOSP study. The Solution: This resolution would: Remove the requirement that supervising attorneys have engaged in five years of continuous law practice immediately prior to beginning supervision, recognizing that new

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lawyers are well positioned to teach basic law curricula, and recognizing that the “continuous” practice requirement is very difficult to meet, given the realities of the legal job market and various life circumstances that interrupt law practice. Enable attorneys to supervise up to four students at once, raising the current limit of two. Remove the requirement that all study must physically take place in an office, given that this limits learning opportunities and puts a particular burden on lawyers with home offices. Remove the requirement that study take place inside the borders of California, recognizing an increasingly mobile society and the growth of virtual law practices. Fix the problematic formula by which students lose study credit if they do not pass the first‐year law student bar exam within three exam administrations, since the current formula disparately impacts students depending on the month of the year in which they begin study. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Richard P. Koch, 268 Bush St. #3237, San Francisco, CA 94104 (415) 397-1060, Fax (415) 397-3077, rpkoch1@sbcglobal.net RESPONSIBLE FLOOR DELEGATE: Richard P. Koch

COUNTERARGUMENTS TO RESOLUTION 02-04-2015 SACRAMENTO COUNTY BAR ASSOCIATION Resolution 02-04-2015 fails to provide a proper legal background and discusses solutions to problems that aren’t listed in the text of the Resolution. The digest of the resolution states it will “…expand the number of attorneys eligible as supervisors under the State Bar’s Law Office Study Program.” However, the text of resolution adds only the following: “The supervising attorney may supervise up to four students at one time.” The resolution does not expand the number of attorneys at any one firm that may be eligible to supervise, but rather, expands the number of students such an attorney may supervise. As a solution, the resolution lists numerous points that are completely missing from the actual text of the resolution. How can there be solutions to these alleged problems without amending or adding text anywhere? For Example:

The resolution claims it will “remove the requirement that supervising attorneys have engaged in five years of continuous law practice immediately prior to beginning

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supervision…” Nowhere in the resolution does it address where this requirement is listed or how this Resolution would remove the requirement.

The resolution claims it would “remove the requirement that all study must physically take place in an office…” Again, nowhere in the resolution does it address where such requirement is listed or how this Resolution would remove the requirement.

The resolution claims it would “remove the requirement that study take place inside the borders of California…” Again, nowhere in the resolution does it address where such requirement is listed or how this Resolution would remove the requirement.

Beyond the above concerns, the Sacramento County Bar Association also disagrees with the proposed amendment to Business and Professions Code section 6060(e)(2)(B). It is unreasonable to expect that a supervising attorney may provide a proper education to four students while simultaneously performing his/her regular practice. This provision appears to be an attempt to take advantage of the program and fill an office with free or cheap labor. The Sacramento County Bar Association does not object to the proposed amendment to Business and Professions Code section 6060(h)(1).

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RESOLUTION 02-05-2015 DIGEST Nonprofits - Alcoholic Beverages as Raffle Prizes Amends Business and Professions Code section 24045.6 to allow nonprofits to give away alcoholic beverages in raffles, sweepstakes, or contests. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Business and Professions Code section 24045.6 to allow nonprofits to give away alcoholic beverages in raffles, sweepstakes, or contests. This resolution should be disapproved because the raffles it seeks to legalize already appear to be allowed under current law, and if they are not, the resolution would not effectively legalize them without amendment. It does not appear that current law prohibits wine raffles by nonprofit temporary license holders. This is because a raffle award likely constitutes a “sale” of alcohol authorized under a license to sell alcohol, rather than a prohibited gift. If a raffle award were a gift, arguably it would run afoul of Business and Professions Code section 25600, which prohibits any licensee from giving “any premium, gift, or free goods in connection with the sale or distribution of any alcoholic beverage[.]” But Business and Professions Code section 23025 defines “sale” quite broadly, to include “any transaction whereby, for any consideration, title to alcoholic beverages is transferred from one person to another[.]” Under this definition, even exchanging the winning raffle ticket for a prize of wine would constitute a sale authorized by the holders license, rather than a giveaway prohibited by section 25600. Indeed, the 2008 version of Department of Alcohol Beverage and Control (“ABC”) form entitled “Instructions for Obtaining a Daily License” (Form No. ABC-221 INSTR (04/08)) describes the fee for a “Special Temporary License” as “$100.00 (Auctions/Raffles),” suggesting that, at least at the time, the agency charged with enforcement of alcohol control laws held the view that nonprofit wine raffles were permitted under the law. If ABC were to construe wine raffles as prohibited “gifts” of alcohol, clarifying that such raffles do not violate Business and Professions Code sections 25600.1 or 25600.2, as proposed in the resolution, would not solve the problem because these statutes apply only to “authorized licensees,” a group that does not include temporary nonprofit licensees. Rather, the resolution would need to be amended either to exempt wine raffles from the prohibition in section 25600, or to amend another statute to clarify that alcohol raffles are “sales.”

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend Business and Professions Code section 24045.6 to read as follows: §24045.6 (a) The department may issue a special temporary on-sale or off-sale wine license to any 1 nonprofit corporation that is exempt from payment of income taxes under Section 23701d or 2 23701e of the Revenue and Taxation Code and Section 501(c)(3) or 501(c)(6) of the Internal 3 Revenue Code. An applicant for this license shall accompany the application with a fee of one 4 hundred dollars ($100). 5 (b) This special license shall only entitle the licensee to sell wine bought by, or donated 6 to, the licensee to a consumer and to any person holding a license authorizing the sale of wine. 7 Notwithstanding any other provision of this division, a licensee may donate or sell wine to a 8 nonprofit corporation that obtains a special temporary on-sale or off-sale license under this 9 section, provided that the donation is not made in connection with a sale of an alcoholic 10 beverage. 11 (c) This special license shall be for a period not exceeding 15 days. In the event the 12 license under this section is issued for a period exceeding two days, it shall be used solely for 13 retail sales in conjunction with an identifiable fundraising event sponsored or conducted by the 14 licensee and all bottles of wine sold under this license shall bear a label prominently identifying 15 the event. Only three special licenses authorized by this section shall be issued to any corporation 16 in a calendar year. 17 (d) Notwithstanding any other provision, any nonprofit as defined above who obtains a 18 Department of Justice raffle registration pursuant to Section 320.5 of the Penal Code and the 19 special temporary license described in this section, may hold a raffle, sweepstakes, or contest 20 involving a prize of alcoholic beverages and not be in violation of Section 25600.1 or 25600.2.21

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Sacramento County Bar Association STATEMENT OF REASONS The Problem: After Prohibition ended, only those with state-issued licenses or permits can commercially make, distribute, or sell alcoholic beverages. The Department of Alcoholic Beverage Control (ABC) issues those licenses and permits. Separately, any charity wishing to hold a raffle must register annually with the Department of Justice’s Registry of Charitable Trusts. This includes school booster clubs, fraternal organizations, religious groups, etc. The Department of Justice reviews the registrations to ensure the legitimacy of these groups. Any raffles conducted without such a current registration may run afoul of state gambling laws. Penalties, in addition to the loss of goodwill from “bad press,” include criminal misdemeanor prosecution and civil administrative action against a registrant.

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Many non-profits include wine (and other alcoholic beverages) in fundraising raffles without the approval of either the Registry of Charitable Trusts or the Department of Alcoholic Beverage Control, and are thus operating outside the confines of current law. Under ABC statutes and regulations, “free goods” are not allowed to be given away, including as prizes for contests, sweepstakes, raffles, etc., in conjunction with the sale or advertisement of alcohol. (Some exceptions exist for novelty trifles.) For instance, a winery could not offer a patron (or restaurant) a bottle of scotch for purchasing a case of wine. Penalties for licensees found in violation of free goods rules start at a $10,000 fine and can escalate to revocation of the license entirely. A common fundraiser for many non-profits is a “wine auction” or “wine tasting” which requires a special temporary permit from ABC. Even if non-profits seek to hold “wine raffles” in which bottles of wine, beer, or spirits are given as prizes in a fundraising raffle conducted pursuant to Penal Code 320.5 (charitable raffles), according to the Department of Alcoholic Beverage Control, having alcohol as a prize violates Business and Professions Code 25600.1 (raffle) or 25600.2 (sweepstakes). There is an absence of clear guidance and a lack of uniform enforcement regarding whether non-profit organizations may include such alcoholic beverages as prizes in fundraising raffles. On the one hand, the Registry of Charitable Trusts is responsible for licensing raffles, but does not have the authority to issue a license that includes alcoholic beverages. While the Department of Alcoholic Beverage Control grants single-day licenses for non-profits to “auction” wine, but interprets having alcohol as a prize violates Business and Professions Code 25600.1 (raffle) or 25600.2 (sweepstakes). Further complicating things, ABC states that it does not have the authority to control the conduct of raffles, since such authority is vested with the Registry. The Solution: This resolution would allow non-profits to raise money with prizes of alcohol donated by a winegrower, beer manufacturer, distilled spirits manufacturer, distilled spirits manufacturer’s agent or an importer. This would allow nonprofits to raise more money than if they conducted a “wine auction” where individuals bid on single bottles of alcohol. IMPACT STATEMENT This resolution does not affect any other law, statute, or rule. CURRENT OR PRIOR RELATED LEGISLATION Added Stats 1978 ch 106 § 1, effective April 21, 1978. Amended Stats 1984 ch 920 § 1, effective September 7, 1984; Stats 1996 ch 900 § 2 (SB 1923); Stats 2004 ch 523 § 4 (AB 2927), effective September 14, 2004; Stats 2008 ch 71 § 2 (AB 1964), effective January 1, 2009; Stats 2009 ch 140 § 24 (AB 1164), effective January 1, 2010. (The 2009 change was code maintenance; the 2008 change was to expand to a three-days-per-year provision. The 2004 change had allowed such a temporary license only once per calendar year. The 1996 change expanded the number of days for which a permit could issue.) In addition to expanding the ability of non-profits to participate in fundraising with the alcoholic beverage industry in the 2008 legislation, separately, 2008 Stats. 337 (SB 157) enacted the Nonprofit Organization Equal Participation Act, which declared in section 1(b)(2) that the

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“collaboration between the wine industry and nonprofit organizations has a proven track record in attracting supporters to nonprofit fundraising events. This support has resulted in sustaining vital community services across the state.” AUTHOR AND/OR PERMANENT CONTACT: Stephen M. Duvernay, President, Sacramento Law Foundation, stephen.duvernay@gmail.com RESPONSIBLE FLOOR DELEGATE: Stephen M. Duvernay

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RESOLUTION 02-06-2015 DIGEST Tobacco: Raising Minimum Age to 21 Amends Business and Professions Code sections 17537.3, 22951, 22952, 22956, 22958 and 22963, adds Business and Professions Code section 22964, and amends Penal Code section 308, to raise the minimum age for the purchase of, and advertisement for, tobacco products to 21. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Business and Professions Code sections 17537.3, 22951, 22952, 22956, 22958 and 22963, adds Business and Professions Code section 22964, and amends Penal Code section 308, to raise the minimum age for the purchase of, and advertisement for, tobacco products to 21. This resolution should be approved in principle because it has been shown that raising the minimum legal age ("MLA") will likely prevent or delay initiation of tobacco use by adolescents and young adults. Nearly all smokers start as kids or young adults and these age groups are heavily targeted by the tobacco industry. Most states, including California, currently set the MLA at 18. The initiation age of tobacco use is critical to improving the likely public health outcome by preventing or delaying serious illness and premature death. (Institute of Medicine of the National Academies, Public Health Implications of Raising the Minimum Age of Legal Access to Tobacco Products (March 2015) [https://www.iom.edu/~/media/Files/Report%20Files/2015/TobaccoMinAge/ tobacco_minimum_age_report_brief.pdf].) The Institute of Medicine study found that raising the MLA to 21 would have a substantial positive impact by significantly reducing the number of adolescents and young adults who start smoking; reduce smoking-related deaths; and immediately improve the health of those who are deterred from smoking, as well as that of their families. It predicted adverse maternal, fetal and infant outcomes, including preterm births, low birth weights, and SIDS, would decrease due to reduced tobacco exposure in mothers and infants. More than 60 localities in seven states, including New York City, raised the MLA to 21 as of April 2015, and statewide legislation is being considered in several states. In California, Senator Ed Hernandez (D-West Covina) introduced Senate Bill No. 151 (2014-2016 Reg. Sess.) which mirrors this resolution. Although the two-year bill passed the Senate, it was held in the Assembly and tabled until next year. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Business and Professions Code sections 17537.3, 22951, 22952,

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22956, 22958, and 22963, and add section 22964, and amend Penal Code section 308, to read as follows: §17537.3 The following acts are prohibited: 1 (a) For any person to offer as part of an advertising plan or program, promotional offers 2 of smokeless tobacco products which require proof of purchase of a smokeless tobacco product 3 unless it carries a designation that the offer is not available to minors persons under 21 years of 4 age. Each promotional offer shall include in any mail-in coupon a statement requesting 5 purchasers to verify that the purchaser is 1821 years of age or older. 6 (b) For any person to honor mail-in and telephone requests for promotional offers of 7 smokeless tobacco products unless appropriate efforts are made to ascertain that a purchaser is 8 over 18 21 years of age. For purposes of this subdivision, appropriate efforts to ascertain the age 9 of a purchaser includes, but is not limited to, requests for a purchaser’s birth date. 10 (c) For any person by any means, as part of an advertising plan or program, to distribute 11 free samples of smokeless tobacco products within a two block radius of any premises or 12 facilities whose primary purpose is directed toward persons under the age of 1821 years 13 including, but not limited to, schools, clubhouses, and youth centers, when those premises are 14 being used for their primary purposes. 15 (d) For any person to distribute, as part of any advertising plan or program, unsolicited 16 samples of smokeless tobacco products through a mail campaign. 17 18 §22951 19 The Legislature finds and declares that reducing and eventually eliminating the illegal 20 purchase and consumption of tobacco products by minors any person under 21 years of age is 21 critical to ensuring the long-term health of our state’s citizens. Accordingly, California must 22 fully comply with federal regulations, particularly the “Synar Amendment,” that restrict tobacco 23 sales to minors and require states to vigorously enforce their laws prohibiting the sale and 24 distribution of tobacco products to persons under 18 years of age. Full compliance and vigorous 25 enforcement of the “Synar Amendment” requires the collaboration of multiple state and local 26 agencies that license, inspect, or otherwise conduct business with retailers, distributors, or 27 wholesalers that sell tobacco. 28 29 §22952 30 On or before July 1, 1995, the The State Department of Public Health shall do all of the 31 following: 32 (a) Establish and develop a program to reduce the availability of tobacco products to 33 persons under 18 21 years of age through the enforcement activities authorized by this division. 34 (b) Establish requirements that retailers of tobacco products post conspicuously, at each 35 point of purchase, a notice stating that selling tobacco products to anyone under 18 21 years of 36 age is illegal and subject to penalties. The notice shall also state that the law requires that all 37 persons selling tobacco products check the identification of a purchaser of tobacco products who 38 reasonably appears to be under 18 21 years of age. The warning signs shall include a toll-free 39 telephone number to the department for persons to report unlawful sales of tobacco products to 40 minors any person under 21 years of age. 41

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(c) Provide that primary responsibility for enforcement of this division shall be with the 42 department. In carrying out its enforcement responsibilities, the department shall conduct 43 random, onsite sting inspections at retail sites and shall enlist the assistance of persons that are 44 15 and 16 under 21 years of age in conducting these enforcement activities. The department may 45 conduct onsite sting inspections in response to public complaints or at retail sites where 46 violations have previously occurred, and investigate illegal sales of tobacco products to minors 47 any person under 21 years of age by telephone, mail, or the Internet. Participation in these 48 enforcement activities by a person under 18 21 years of age does not constitute a violation of 49 subdivision (b) of Section 308 of the Penal Code for the person under 18 21 years of age, and the 50 person under 18 21 years of age is immune from prosecution thereunder, or under any other 51 provision of law prohibiting the purchase of these products by a person under 18 21 years of age. 52 (d) In accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of 53 Division 3 of Title 2 of the Government Code, the department shall adopt and publish guidelines 54 for the use of persons under 18 21 years of age in inspections conducted pursuant to subdivision 55 (c) that shall include, but not be limited to, all of the following: 56 (1) An enforcing agency may use persons under 18 years of age who are 15 or 16 21 57 years of age in random inspections to determine if sales of cigarettes or other tobacco products 58 are being made to persons under 18 21 years of age. 59 (2) A photograph or video recording of the person under 18 21 years of age shall be 60 taken prior to each inspection or shift of inspections and retained by the enforcing agency for 61 purposes of verifying appearances. 62 (3) An enforcing agency may use video recording equipment when conducting the 63 inspections to record and document illegal sales or attempted sales. 64 (4) The person under 18 21 years of age, if questioned about his or her age, need not 65 state his or her actual age but shall present a true and correct identification if verbally asked to 66 present it. Any failure on the part of the person under 18 21 years of age to provide true and 67 correct identification, if verbally asked for it, shall be a defense to an action pursuant to this 68 section. 69 (5) The person under 18 21 years of age shall be under the supervision of a regularly 70 employed peace officer during the inspection. 71 (6) All persons under 18 21 years of age used in this manner by an enforcing agency 72 shall display the appearance of a person under 18 21 years of age. It shall be a defense to an 73 action under this division that the person’s appearance was not that which could be generally 74 expected of a person under 18 21 years of age, under the actual circumstances presented to the 75 seller of the cigarettes or other tobacco products at the time of the alleged offense. 76 (7) Following the completion of the sale, the peace officer accompanying the person 77 under 18 21 years of age shall reenter the retail establishment and shall inform the seller of the 78 random inspection. Following an attempted sale, the enforcing agency shall notify the retail 79 establishment of the inspection. 80 (8) Failure to comply with the procedures set forth in this subdivision shall be a defense 81 to an action brought pursuant to this section. 82 (e) Be responsible for ensuring and reporting the state’s compliance with Section 1926 of 83 Title XIX of the federal Public Health Service Act (42 U.S.C. Sec. 300x-26) and any 84 implementing regulations adopted in relation thereto by the United States Department of Health 85 and Human Services. A copy of this report shall be made available to the Governor and the 86 Legislature. 87

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(f) Provide that any civil penalties imposed pursuant to Section 22958 shall be enforced 88 against the owner or owners of the retail business and not the employees of the business. 89 90 §22956 91 All persons engaging in the retail sale of tobacco products shall check the identification 92 of tobacco purchasers, to establish the age of the purchaser, if the purchaser reasonably appears 93 to be under 18 21 years of age. 94 95 §22958 96 (a) An enforcing agency may assess civil penalties against any person, firm, or 97 corporation that sells, gives, or in any way furnishes to another person who is under the age of 18 98 21 years, any tobacco, cigarette, cigarette papers, any other instrument or paraphernalia that is 99 designed for the smoking or ingestion of tobacco, products prepared from tobacco, or any 100 controlled substance, according to the following schedule: (1) a civil penalty of from four 101 hundred dollars ($400) to six hundred dollars ($600) for the first violation, (2) a civil penalty of 102 from nine hundred dollars ($900) to one thousand dollars ($1,000) for the second violation 103 within a five-year period, (3) a civil penalty of from one thousand two hundred dollars ($1,200) 104 to one thousand eight hundred dollars ($1,800) for a third violation within a five-year period, (4) 105 a civil penalty of from three thousand dollars ($3,000) to four thousand dollars ($4,000) for a 106 fourth violation within a five-year period, or (5) a civil penalty of from five thousand dollars 107 ($5,000) to six thousand dollars ($6,000) for a fifth violation within a five-year period. 108 (b) (1) In addition to the civil penalties described in subdivision (a), upon the 109 assessment of a civil penalty for the third, fourth, or fifth violation, the department, within 60 110 days of the date of service of the final administrative adjudication on the parties or payment of 111 the civil penalty for an uncontested violation, shall notify the State Board of Equalization of the 112 violation. The State Board of Equalization shall then assess a civil penalty of two hundred fifty 113 dollars ($250) and suspend or revoke a license issued pursuant to Chapter 2 (commencing with 114 Section 22972) of Division 8.6 in accordance with the following schedule: 115 (A) A 45-day suspension of the license for a third violation at the same location within a 116 five-year period. 117 (B) A 90-day suspension of the license for a fourth violation at the same location within 118 a five-year period. 119 (C) Revocation of the license for a fifth violation at the same location within a five-year 120 period. 121 (2) The provisions of Chapter 4 (commencing with Section 55121) of Part 30 of Division 122 2 of the Revenue and Taxation Code apply with respect to the collection of the penalty imposed 123 by the State Board of Equalization pursuant to paragraph (1). 124 (c) (1) For each suspension or revocation pursuant to subdivision (b), the civil penalty of 125 two hundred fifty dollars ($250) assessed pursuant to that subdivision, notwithstanding Section 126 22953, shall be deposited into the Cigarette and Tobacco Products Compliance Fund established 127 pursuant to Section 22990. Moneys from that civil penalty deposited into this fund shall be made 128 available to the State Board of Equalization, upon appropriation by the Legislature, for the 129 purposes of meeting its duties under subdivision (b). 130 (2) The department shall, upon request, provide to the State Board of Equalization 131 information concerning any person, firm, or corporation that has been assessed a civil penalty for 132

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violation of the STAKE Act pursuant to this section when the department has notified the State 133 Board of Equalization of the violation. 134 (d) The enforcing agency shall assess penalties pursuant to the schedule set forth in 135 subdivision (a) against a person, firm, or corporation that sells, offers for sale, or distributes 136 tobacco products from a cigarette or tobacco products vending machine, or a person, firm, or 137 corporation that leases, furnishes, or services these machines in violation of Section 22960. 138 (e) An enforcing agency may assess civil penalties against a person, firm, or corporation 139 that sells or deals in tobacco or any preparation thereof, and fails to post conspicuously and keep 140 posted in the place of business at each point of purchase the notice required pursuant to 141 subdivision (b) of Section 22952. The civil penalty shall be in the amount of two hundred dollars 142 ($200) for the first offense and five hundred dollars ($500) for each additional violation. 143 (f) An enforcing agency shall assess penalties in accordance with the schedule set forth 144 in subdivision (a) against a person, firm, or corporation that advertises or causes to be advertised 145 a tobacco product on an outdoor billboard in violation of Section 22961. 146 (g) If a civil penalty has been assessed pursuant to this section against a person, firm, or 147 corporation for a single, specific violation of this division, the person, firm, or corporation shall 148 not be prosecuted under Section 308 of the Penal Code for a violation based on the same facts or 149 specific incident for which the civil penalty was assessed. If a person, firm, or corporation has 150 been prosecuted for a single, specific violation of Section 308 of the Penal Code, the person, 151 firm, or corporation shall not be assessed a civil penalty under this section based on the same 152 facts or specific incident upon which the prosecution under Section 308 of the Penal Code was 153 based. 154 (h) (1) In the case of a corporation or business with more than one retail location, to 155 determine the number of accumulated violations for purposes of the penalty schedule set forth in 156 subdivision (a), violations of this division by one retail location shall not be accumulated against 157 other retail locations of that same corporation or business. 158 (2) In the case of a retail location that operates pursuant to a franchise as defined in 159 Section 20001, violations of this division accumulated and assessed against a prior owner of a 160 single franchise location shall not be accumulated against a new owner of the same single 161 franchise location for purposes of the penalty schedule set forth in subdivision (a). 162 (i) Proceedings under this section shall be conducted pursuant to Section 131071 of the 163 Health and Safety Code, except in cases where a civil penalty is assessed by an enforcing agency 164 other than the department, in which case proceedings shall be conducted pursuant to the 165 procedures of that agency that are consistent with Section 131071 of the Health and Safety Code. 166 167 §22963 168 (a) The sale, distribution, or nonsale distribution of tobacco products directly or 169 indirectly to any person under the age of 18 21 years through the United States Postal Service or 170 through any other public or private postal or package delivery service at locations, including, but 171 not limited to, public mailboxes and mailbox stores, is prohibited. 172 (b) Any person selling or distributing, or engaging in the nonsale distribution of, tobacco 173 products directly to a consumer in the state through the United States Postal Service or by any 174 other public or private postal or package delivery service, including orders placed by mail, 175 telephone, facsimile transmission, or the Internet, shall comply with the following provisions: 176 (1) (A) Before enrolling a person as a customer, or distributing or selling, or engaging in 177 the nonsale distribution of, the tobacco product through any of these means, the distributor or 178

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seller shall verify that the purchaser or recipient of the product is 18 21 years of age or older. The 179 distributor or seller shall attempt to match the name, address, and date of birth provided by the 180 customer to information contained in records in a database of individuals whose age has been 181 verified to be 18 21 years or older by reference to an appropriate database of government records 182 kept by the distributor, a direct marketing firm, or any other entity. In the case of a sale, the 183 distributor or seller shall also verify that the billing address on the check or credit card offered 184 for payment by the purchaser matches the address listed in the database. 185 (B) If the seller, distributor, or nonsale distributor, is unable to verify that the purchaser 186 or recipient is 18 21 years of age or older pursuant to subparagraph (A), he or she shall require 187 the customer or recipient to submit an age-verification kit consisting of an attestation signed by 188 the customer or recipient that he or she is 18 21 years of age or older and a copy of a valid form 189 of government identification. For the purposes of this section, a valid form of government 190 identification includes a driver’s license, state identification card, passport, an official 191 naturalization or immigration document, such as an alien registration receipt card (commonly 192 known as a “green card”) or an immigrant visa, or military identification. In the case of a sale, 193 the distributor or seller shall also verify that the billing address on the check or credit card 194 provided by the consumer matches the address listed in the form of government identification. 195 (2) In the case of a sale, the distributor or seller shall impose a two-carton minimum on 196 each order of cigarettes, and shall require payment for the purchase of any tobacco product to be 197 made by personal check of the purchaser or the purchaser’s credit card. No money order or cash 198 payment shall be received or permitted. The distributor or seller shall submit to each credit card 199 acquiring company with which it has credit card sales identification information in an 200 appropriate form and format so that the words “tobacco product” may be printed in the 201 purchaser’s credit card statement when a purchase of a tobacco product is made by credit card 202 payment. 203 (3) In the case of a sale, the distributor or seller shall make a telephone call after 5 p.m. 204 to the purchaser confirming the order prior to shipping the tobacco products. The telephone call 205 may be a person-to-person call or a recorded message. The distributor or seller is not required to 206 speak directly with a person and may leave a message on an answering machine or by voice 207 mail. 208 (4) The nonsale distributor shall deliver the tobacco product to the recipient’s verified 209 mailing address, or in the case of a sale, the seller or distributor shall deliver the tobacco product 210 to the purchaser’s verified billing address on the check or credit card used for payment. No 211 delivery described under this section shall be permitted to any post office box. 212 (c) Notwithstanding subdivisions (a) and (b), if a seller, distributor, or nonsale 213 distributor, complies with all of the requirements of this section and a minor person under 21 214 years of age obtains a tobacco product by any of the means described in subdivision (b), the 215 seller, distributor, or nonsale distributor is not in violation of this section. 216 (d) For the purposes of the enforcement of this section pursuant to Section 22958, the 217 acts of the United States Postal Service or other common carrier when engaged in the business of 218 transporting and delivering packages for others, and the acts of a person, whether compensated 219 or not, who transports or delivers a package for another person without any reason to know of the 220 package’s contents, are not unlawful and are not subject to civil penalties. 221 (e) (1) (A) For the purposes of this section, a “distributor” is any person or entity, 222 within or outside the state, who agrees to distribute tobacco products to a customer or recipient 223

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within the state. The United States Postal Service or any other public or private postal or package 224 delivery service are not distributors within the meaning of this section. 225 (B) A “nonsale distributor” is any person inside or outside of this state who, directly or 226 indirectly, knowingly provides tobacco products to any person in this state as part of a nonsale 227 transaction. “Nonsale distributor” includes the person or entity who provides the tobacco product 228 for delivery and the person or entity who delivers the product to the recipient as part of a nonsale 229 transaction. 230 (C) “Nonsale distribution” means to give smokeless tobacco or cigarettes to the general 231 public at no cost, or at nominal cost, or to give coupons, coupon offers, gift certificates, gift 232 cards, or other similar offers, or rebate offers for smokeless tobacco or cigarettes to the general 233 public at no cost or at nominal cost. Distribution of tobacco products, coupons, coupon offers, 234 gift certificates, gift cards, or other similar offers, or rebate offers in connection with the sale of 235 another item, including tobacco products, cigarette lighters, magazines, or newspapers shall not 236 constitute nonsale distribution. 237 (2) For the purpose of this section, a “seller” is any person or entity, within or outside the 238 state, who agrees to sell tobacco products to a customer within the state. The United States Postal 239 Service or any other public or private postal or package delivery service are not sellers within the 240 meaning of this section. 241 (3) For the purpose of this section, a “carton” is a package or container that contains 200 242 cigarettes. 243 (f) A district attorney, city attorney, or the Attorney General may assess civil penalties 244 against any person, firm, corporation, or other entity that violates this section, according to the 245 following schedule: 246 (1) A civil penalty of not less than one thousand dollars ($1,000) and not more than two 247 thousand dollars ($2,000) for the first violation. 248 (2) A civil penalty of not less than two thousand five hundred dollars ($2,500) and not 249 more than three thousand five hundred dollars ($3,500) for the second violation. 250 (3) A civil penalty of not less than four thousand dollars ($4,000) and not more than five 251 thousand dollars ($5,000) for the third violation within a five-year period. 252 (4) A civil penalty of not less than five thousand five hundred dollars ($5,500) and not 253 more than six thousand five hundred dollars ($6,500) for the fourth violation within a five-year 254 period. 255 (5) A civil penalty of ten thousand dollars ($10,000) for a fifth or subsequent violation 256 within a five-year period. 257 258 §22964 259 This division sets forth minimum state restrictions with respect to the legal age to 260 purchase or possess tobacco products and does not preempt or otherwise prohibit the adoption of 261 a local standard that imposes a more restrictive legal age to purchase or possess tobacco 262 products. A local standard that imposes a more restrictive legal age to purchase or possess 263 tobacco products shall control in the event of any inconsistency between this division and a local 264 standard. 265 266 §308 267 (a) (1) Every person, firm, or corporation that knowingly or under circumstances in 268 which it has knowledge, or should otherwise have grounds for knowledge, sells, gives, or in any 269

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way furnishes to another person who is under the age of 18 21 years any tobacco, cigarette, or 270 cigarette papers, or blunts wraps, or any other preparation of tobacco, or any other instrument or 271 paraphernalia that is designed for the smoking or ingestion of tobacco, products prepared from 272 tobacco, or any controlled substance, is subject to either a criminal action for a misdemeanor or 273 to a civil action brought by a city attorney, a county counsel, or a district attorney, punishable by 274 a fine of two hundred dollars ($200) for the first offense, five hundred dollars ($500) for the 275 second offense, and one thousand dollars ($1,000) for the third offense. 276 Notwithstanding Section 1464 or any other law, 25 percent of each civil and criminal 277 penalty collected pursuant to this subdivision shall be paid to the office of the city attorney, 278 county counsel, or district attorney, whoever is responsible for bringing the successful action, 279 and 25 percent of each civil and criminal penalty collected pursuant to this subdivision shall be 280 paid to the city or county for the administration and cost of the community service work 281 component provided in subdivision (b). 282 Proof that a defendant, or his or her employee or agent, demanded, was shown, and 283 reasonably relied upon evidence of majority shall be defense to any action brought pursuant to 284 this subdivision. Evidence of majority of a person is a facsimile of or a reasonable likeness of a 285 document issued by a federal, state, county, or municipal government, or subdivision or agency 286 thereof, including, but not limited to, a motor vehicle operator’s license, a registration certificate 287 issued under the federal Selective Service Act, or an identification card issued to a member of 288 the Armed Forces. 289 For purposes of this section, the person liable for selling or furnishing tobacco products 290 to minors persons under 21 years of age by a tobacco vending machine shall be the person 291 authorizing the installation or placement of the tobacco vending machine upon premises he or 292 she manages or otherwise controls and under circumstances in which he or she has knowledge, 293 or should otherwise have grounds for knowledge, that the tobacco vending machine will be 294 utilized by minors persons under 21 years of age. 295 (2) For purposes of this section, “blunt wraps” means cigar papers or cigar wrappers of 296 all types that are designed for smoking or ingestion of tobacco products and contain less than 50 297 percent tobacco. 298 (b) Every person under the age of 18 21 years who purchases, receives, or possesses any 299 tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, or any other 300 instrument or paraphernalia that is designed for the smoking of tobacco, products prepared from 301 tobacco, or any controlled substance shall, upon conviction, be punished by a fine of seventy-302 five dollars ($75) or 30 hours of community service work. 303 (c) Every person, firm, or corporation that sells, or deals in tobacco or any preparation 304 thereof, shall post conspicuously and keep so posted in his, her, or their place of business at each 305 point of purchase the notice required pursuant to subdivision (b) of Section 22952 of the 306 Business and Professions Code, and any person failing to do so shall, upon conviction, be 307 punished by a fine of fifty dollars ($50) for the first offense, one hundred dollars ($100) for the 308 second offense, two hundred fifty dollars ($250) for the third offense, and five hundred dollars 309 ($500) for the fourth offense and each subsequent violation of this provision, or by imprisonment 310 in a county jail not exceeding 30 days. 311 (d) For purposes of determining the liability of persons, firms, or corporations 312 controlling franchises or business operations in multiple locations for the second and subsequent 313 violations of this section, each individual franchise or business location shall be deemed a 314 separate entity. 315

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(e) Notwithstanding subdivision (b), any person under 18 21 years of age who purchases, 316 receives, or possesses any tobacco, cigarette, or cigarette papers, or any other preparation of 317 tobacco, any other instrument or paraphernalia that is designed for the smoking of tobacco, or 318 products prepared from tobacco is immune from prosecution for that purchase, receipt, or 319 possession while participating in either of the following: 320 (1) An enforcement activity that complies with the guidelines adopted pursuant to 321 subdivisions (c) and (d) of Section 22952 of the Business and Professions Code. 322 (2) An activity conducted by the State Department of Public Health, a local health 323 department, or a law enforcement agency for the purpose of determining or evaluating youth 324 tobacco purchase rates. 325 (f) It is the Legislature’s intent to regulate the subject matter of this section. As a result, a 326 city, county, or city and county shall not adopt any ordinance or regulation inconsistent with this 327 section. 328 329 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the 330 California Constitution because the only costs that may be incurred by a local agency or school 331 district will be incurred because this act creates a new crime or infraction, eliminates a crime or 332 infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 333 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of 334 Article XIII B of the California Constitution. 335

(Proposed new language underlined; language to be deleted stricken) PROPONENT: The Bar Association of San Francisco STATEMENT OF REASONS The Problem: Existing law, the Stop Tobacco Access to Kids Enforcement (STAKE) Act, establishes requirements for distributors and retailers regarding tobacco sales to minors. Existing law prohibits the furnishing of tobacco products to, and the purchase of tobacco products by, a person under 18 years of age. The problem is nine in 10 smokers take up the smoking habit by age 18, and 36,000 California kids start smoking each year. (Koseff, Alexei, "Bill would raise California smoking age to 21," Sacramento Bee, 1/29/15, quoting the American Lung Association in California.) The problems with smoking are myriad, and it would be best to restrict access to those who are at least 21 years old, the same as is done with alcohol. The Solution: This bill would prohibit the furnishing of tobacco products to, and the purchase of tobacco products by, a person under 21 years of age. IMPACT STATEMENT This resolution does not affect any other statute or case law. CURRENT OR PRIOR RELATED LEGISLATION This resolution is copied from SB 151, introduced on January 29, 2015 by Sen. Ed Hernandez (D-Azusa), and co-authored by Assembly Member Jim Wood (D-North Coast), and Senator Leno (D-San Francisco.)

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AUTHOR AND/OR PERMANENT CONTACT: Matthew A. Mallet ,Of Counsel, Law Offices of Kirk B. Freeman, 256 Sutter Street, Sixth Floor, San Francisco, CA 94108, (415)398-1082,matthew@kbflaw.com RESPONSIBLE FLOOR DELEGATE: Matthew Mallet

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RESOLUTION 03-01-2015 DIGEST Healthcare Law: Uncapped Damages After Statutory Offer to Compromise Amends Civil Code section 3333.2 to permit general damages exposure, uncapped by the $250,000 MICRA limit, for a healthcare defendant who fails to accept an offer to compromise. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: Similar to Resolution 07-03-2009, which was approved in principle. Reasons: This resolution amends Civil Code section 3333.2 to provide permit general damages exposure, uncapped by the $250,000 MICRA limit, for a healthcare defendant who fails to accept an offer to compromise. This resolution should be approved in principle because, with the current MICRA cap on general damages, defendant health care providers and their insurers have little incentive to settle even where the plaintiff’s demand is reasonable, and the resolution would interject balance into the negotiations, foster responsible case assessment and decision-making, and promote settlement prior to trial. The resolution only impacts MICRA’s $250,000 general damage limitation — imposed some four decades ago by the Legislature and Governor on medical malpractice cases in the face of a statewide crisis in the availability of health care services, when physicians could no longer afford the cost of reasonable professional liability insurance. The resolution would only open up the limits in those cases where the medical defendant chooses not to settle when faced with a statutory demand to settle under Code of Civil Procedure section 998, and then fails to obtain a better result at trial than the health care provider could have done had that defendant accepted the statutory offer or entered a pretrial settlement. The resolution would not affect the MICRA limitation in cases where the parties settle prior to trial. TEXT OF RESOLUTION RESOLVED, that the Conference of California Bar Associations recommends that legislation be sponsored to amend Civil Code section 3333.2 to read as follows: §3333.2 (a) In any action for injury against a health care provider based on professional 1 

negligence, the injured plaintiff shall be entitled to recover noneconomic losses to compensate 2 

for pain, suffering, inconvenience, physical impairment, disfigurement and other non-pecuniary 3 

damage. 4 

(b) In no action shall the amount of damages for noneconomic losses exceed two hundred 5 

fifty thousand dollars ($250,000), except that if a demand for compromise in an amount that is 6 

within the limits of all applicable insurance policies is made and refused pursuant to the 7 

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provisions of Code of Civil Procedure section 998, this limitation on noneconomic damages shall 8 

not apply to a subsequent verdict that exceeds two hundred fifty thousand dollars ($250,000). 9 

(c) For the purposes of this section: 10 

(1) “Health care provider” means any person licensed or certified pursuant to Division 2 11 

(commencing with Section 500) of the Business and Professions Code, or licensed pursuant to 12 

the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 13 

2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any 14 

clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with 15 

Section 1200) of the Health and Safety Code. “Health care provider” includes the legal 16 

representatives of a health care provider; 17 

(2) “Professional negligence” means a negligent act or omission to act by a health care 18 

provider in the rendering of professional services, which act or omission is the proximate cause 19 

of a personal injury or wrongful death, provided that such services are within the scope of 20 

services for which the provider is licensed and which are not within any restriction imposed by 21 

the licensing agency or licensed hospital. 22 

(Proposed new language underlined; language to be deleted stricken.)

PROPONENT: San Diego County Bar Association The Problem: Settlement of medical malpractices cases is problematic because carriers believe that their downside liability is minor given the statutory cap on noneconomic damages. As such, even when settlement demands are made that are reasonable, cases do not settle. The Solution: This amendment provides an incentive for settlement within policy limits by increasing the downside potential for cases that must be tried because a settlement demand within policy limits is not accepted. IMPACT STATEMENT: The proposed resolution does not impact any other law, statute, or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Karen R. Frostrom, Thorsnes Bartolotta McGuire, 2550 Fifth Avenue, Suite 1100, San Diego, California, 92103, 619-236-9363, frostrom@tbmlawyers.com RESPONSIBLE FLOOR DELEGATE: Karen R. Frostrom

COUNTERARGUMENTS TO RESOLUTION 03-01-2015 ORANGE COUNTY BAR ASSOCIATION

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The Medical Injury Compensation Reform Act of 1975 (MICRA) cap on noneconomic damages in cases against health care providers has historically been one of the most controversial MICRA provisions. MICRA was enacted at a time of a serious healthcare crisis in California. At the time “the Legislature was primarily concerned with capricious jury awards when it established the MICRA cap. . . . The prospect of a fixed award of noneconomic damages not only increases plaintiffs’ motive to settle, . . . but also restrains the size of settlements. Settlement negotiations are based on liability estimates that are necessarily affected by the cap. By placing an upper limit on the recovery of noneconomic damages at trial, the Legislature indirectly but effectively influenced the parties’ settlement calculations.” See Rashidi v. Moser, 2014 WL 701400. The proposed resolution seeks to create an end run around this very purpose. Additionally, there is no showing as to how this proposed change addresses the problem described. While the proponent’s desire to incentivize health care providers to settle is understandable, amending Civil Code section 3333.2 as proposed swings the pendulum too far and shatters the very limitations the Legislature sought to maintain.

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RESOLUTION 03-02-2015

DIGEST Real Property: Clarifies That a General Reference to a Deed of Trust Is a Mortgage Amends Civil Code section 2920 to clarify that a promissory note secured by a deed of trust may be referred to as a “mortgage.” RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: Similar to Resolution 02-01-2012, which was approved in principle. Reasons: This resolution amends Civil Code section 2920 to clarify that a promissory note secured by a deed of trust may be referred to as a “mortgage.” This resolution should be approved in principle because it updates the Civil Code to reflect the types of transactions actually occurring, and will assist courts, attorneys, and laypersons alike in ensuring the vernacular of the statute is identical to the intended meaning of the parties. The definition of a mortgage found in Civil Code section 2920, subdivision (a) would logically include a deed of trust, because such an arrangement clearly hypothecates the property for the performance of an act, that is, repayment of the money borrowed. Because a traditional mortgage normally involves two parties, the mortgagor (borrower) and mortgagee (lender), while the deed of trust procedure adds a third party to the mix, the trustee who holds legal title to avoid the necessity of a judicial action to foreclose, lenders have sought to avoid having “deeds of trust” characterized as “mortgages,” leading to the language of section 2920, subdivision (b) which excepts deeds of trust from the class of mortgages with powers of sale. The prevalent financing documentation for loans secured by California real estate is a promissory note secured by a deed of trust. However, if one asks a lay person – who owns his or her own home subject to a loan – whether he or she has a “mortgage,” the likely answer would be “yes.” Similarly, people discuss “foreclosure” in the context of trustee’s sales, when in fact a trustee’s sale is, technically, not a foreclosure. Even the appellate courts use mortgage terms in connection with the analysis of deeds of trust. (See, e.g., Najah v. Scottsdale Insurance Company (2014) 230 Cal.App.4th 125, 129, fn. 3.) Other than the rare private transactions involving deeds or other conveyance documents, traditional mortgages are no longer used in California. Further, it should be possible to differentiate between the enforcement mechanisms for a deed of trust and a traditional mortgagor/mortgagee arrangement requiring legal action to foreclose, while at the same time recognizing that “mortgage brokers” broker deeds of trust. The law should reflect the common usage to avoid unnecessary confusion. Resolution 02-01-2012 was introduced as Assembly Bill No. 1240 (2013-2014 Reg. Sess.) and is pending on the two-year calendar.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Civil Code section 2920 to read as follows: §2920 (a) A mortgage is a contract by which specific property, including an estate for years in 1 real property, is hypothecated for the performance of an act, without the necessity of a change of 2 possession. Subject to subdivision (b) hereof, a promissory note secured by a deed of trust may 3 be referred to as a “mortgage,” without affecting the interpretation or enforceability of any of its 4 terms by such reference. 5 (b) For purposes of Sections 2924 to 2924h, inclusive, "mortgage" also means any 6 security device or instrument, other than a deed of trust, that confers a power of sale affecting 7 real property or an estate for years therein, to be exercised after breach of the obligation so 8 secured, including a real property sales contract, as defined in Section 2985, which contains such 9 a provision. 10

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem: The definition of a mortgage found in Civil Code section 2920, subdivision (a) would logically include a deed of trust, as such an arrangement clearly hypothecates the property for the performance of an act, that is, repayment of the money borrowed. Because a traditional mortgage normally involves two parties, the mortgagor (borrower) and mortgagee (lender) whereas the deed of trust procedure adds a third party to the mix, the trustee, to hold legal title to avoid the necessity of a judicial action to foreclose, lenders have sought to avoid having deeds of trust characterized as mortgages, leading to the language of section 2920, subdivision (b) which excepts deeds of trust from the class of mortgages with powers of sale. The prevalent financing documentation for loans secured by California real estate is a promissory note secured by a deed of trust. If you ask a lay person who owns his or her own home subject to a loan whether he or she has a “mortgage,” the likely answer would be “yes.” Similarly, people discuss “foreclosure” in the context of trustee’s sales, when in fact a trustee’s sale is, technically, not a foreclosure. Even the appellate courts use mortgage terms in connection with the analysis of deeds of trust. Please see, e.g., Najah v. Scottsdale Insurance Company (2014) 230 Cal.App.4th 125, 129, fn.3.With a traditional mortgage, the lender has to file a formal lawsuit to foreclose on the equity of redemption, whereas with a deed of trust, the lender/beneficiary need merely instruct the trustee to perform the non-judicial trustee’s sale process described in Civil Code sections 2924, et seq., to enable the beneficiary to realize on the security. Either way, if you don’t pay the note, you lose your property. Civil Code section 2923.1 provides for a “mortgage broker” as licensed person who provides “mortgage brokerage services” arranging “a residential mortgage loan made by an unaffiliated third party.” However, other than the rare private transactions involving deeds or other conveyance documents, nobody does traditional mortgages in California any more. It should be possible to remain clear that the enforcement mechanism contemplated by a

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deed of trust sets it apart from the traditional mortgagor/mortgagee arrangement requiring legal action to foreclose the equity of redemption, while at the same time recognizing that “mortgage brokers” broker deeds of trust. The law should reflect the vernacular to avoid unnecessary confusion. The Solution: This Resolution clarifies that specifically for purposes of general reference, a deed of trust is a mortgage, as that is defined in Civil Code section 2920, subdivision (a), subject to the exception in subdivision (b), so as to avoid confusion, particularly among lay persons. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Mary V.J. Cataldo, Esq., Procopio, Cory, Hargreaves & Savitch, LLP, 12544 High Bluff Drive, Ste. 300, San Diego, CA 92130; (760) 444-1773; mary.cataldo@procopio.com RESPONSIBLE FLOOR DELEGATE: Mary V.J. Cataldo, Esq.

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RESOLUTION 03-03-2015

DIGEST Property: Common Interest Developments – Representation by Counsel at Board Meetings Amends Civil Code section 4925 to permit members to have legal representation at a board meeting in certain circumstances. RESOLUTION COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Civil Code section 4925 to permit members to have legal representation at a board meeting in certain circumstances. This resolution should be disapproved because it allows the board to deny a member the ability to have attorney representation at a board meeting by instructing the board’s attorney to not attend the meeting. The last line of the proposed amendment states: “If the board is represented by an attorney and the board’s attorney is unable to attend the board meeting, the member’s attorney may not speak to the board unless the board’s attorney consents in advance of the meeting.” A member appearing at a board meeting without an attorney is clearly at a procedural disadvantage and subject to a denial of due process, regardless of the presence, or lack thereof, of the board’s attorney. However, under this resolution, the board can effectively deny members from being represented by counsel at board meetings by instructing the board’s attorney not to attend. If the board’s attorney does not attend, then the member’s attorney cannot speak at the meeting and, therefore, cannot adequately represent the member. In a judicial proceeding, each party is entitled to appear with counsel regardless of the opposing party’s choice to appear with or without counsel. The same rule should apply here. This resolution is similar in concept to Resolutions 04-01-2014 and 02-03-2012, but those resolutions amended Civil Code section 5915, and were more limited in scope than the present resolution. Resolution 02-03-2012 was approved as amended, and Resolution 04-01-2014 was approved in principle. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Civil Code section 4925 to read as follows: §4925 Open Board Meeting Limitations (a) Any member and/the member's attorney may attend board meetings, except when 1 including meetings of the board held in, executive session, including meetings of the board held 2 in executive session, to which the member is invited to attend. to which the member is invited to 3 attend. As specified in subdivision (b) of Section 4090, a member of the association and/or the 4

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member's attorney shall be entitled to attend a teleconference meeting or the portion of a 5 teleconference meeting that is open to members, and that meeting or portion of the meeting shall 6 be audible to the members in a location specified in the notice of the meeting. 7 (b) Subject to the limitations in subdivision (c), the board shall permit any member to 8 speak at any meeting of the association or the board, including meetings of the board held in 9 executive session to which the member is invited to attend. A reasonable time limit for all 10 members of the association to speak to the board or before a meeting of the association shall be 11 established by the board. 12 (c) Subject to any reasonable time limit established by the board as specified in 13 subdivision (b) of this section, a member's attorney shall be permitted to speak, with or without 14 the member, at any meeting described in subdivision (b) in which a member is also permitted to 15 speak in order to address any item on the agenda, provided the board is represented by its 16 attorney at said meeting and the member and/or the member's attorney gives at least 48 hours 17 advance written notice to the association of the member's attorney 's intention to attend and speak 18 on the agenda item. If the board is represented by an attorney and the board's attorney is unable 19 to attend the board meeting, the member's attorney may not speak to the board unless the board's 20 attorney consents in advance of the meeting. 21

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Orange County Bar Association STATEMENT OF REASONS The Problem: Under existing law a community association may prohibit a member (property owner) from being represented by an attorney at a Board of Directors meeting of the association, even though the association may be represented by its attorney at these meetings. See SB Liberty, LLC v. Isla Verde Association, Inc. (2013) 217 Cal.App.4th 272. The Solution: This resolution will provide a member of a community association the right to have attorney representation at a board of director meeting of the association, provided the association has attorney representation or the association waives its right to have its attorney present. This change in the law would be consistent with the change enacted in 2014 by the Legislature in Civil Code Sections 5910 and 5915 which specify that members of a community association may be represented by an attorney at internal dispute resolution meetings of the association. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Barry A. Ross, 2 Venture, Suite 450, Irvine, CA 92618; 949-727-0977; fax 949-727-9927; email:barry@rossrealestatelaw.com.

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RESPONSIBLE FLOOR DELEGATE: Barry A. Ross

COUNTERARGUMENTS TO RESOLUTION 03-03-2015 BAR ASSOCIATION OF NORTHERN SAN DIEGO COUNTY Permitting a member's attorney to attend any board meeting, not just the executive session meeting to which a member is invited, could potentially (a) have a chilling effect on the meeting and (b) increase costs for the community if the association is forced to bring an attorney to the meeting. Further, proposed subsection (c) assumes that a community's attorney would be able to attend a meeting with 48 hours advance written notice and that a board of directors could authorize such attendance so shortly before a meeting. As an alternative, a member concerned by a particular agenda item, may ask his or her attorney to submit a letter to the Board on an agenda item at issue. SAN DIEGO COUNTY BAR ASSOCIATION The SDCBA Delegation would approve this resolution if amended to delete the last sentence of subdivision (c). While the resolution seeks to allow participation by HOA members’ lawyers in meetings, the current language gives the HOA the power to control when the member may have an attorney appear and speak for the member. As presently drafted, the right to have an attorney present at a meeting and address the board is made contingent on the HOA’s attorney being present. This gives the HOA board the ability to control representation simply by determining whether the HOA will have its own counsel present. Likewise, since smaller HOAs are unlikely to have counsel present at HOA meetings due to cost concerns, this resolution will lead to two classes of HOA members – those who can be represented because the HOA Board can afford to have its attorney present versus those who cannot be represented because the HOA Board cannot afford or is unwilling to pay to have its attorney present.

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RESOLUTION 03-04-2015 DIGEST Disaster Relief: Civil Immunity for Negligence of Uncompensated Good Faith Providers Adds Civil Code section 1714.51 to provide civil immunity for providers of disaster or emergency relief supplies, food, and/or water if in good faith and not for compensation. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution adds Civil Code section 1714.51 to provide civil immunity for providers of disaster or emergency relief supplies, food, and/or water if in good faith and not for compensation. This resolution should be approved in principle for the same reasons that Civil Code section 1714.5 was amended in 2009 to eliminate the restriction of immunity to medical services only, to avoid deterring persons and organizations from offering disaster and other emergency relief assistance for fear of tort liability. The Senate Rules Committee Floor Analysis for Senate Bill No. 39 (2008-2009 Reg. Sess.) (“SB 39”), which enacted Civil Code section 1714.5, noted that prior to its enactment, a person had no duty to come to the aid of another, but if one did so, reasonable care was required and California’s “good Samaritan” law provided immunity from civil liability only for providers of emergency medical care at the scene of a medical emergency. (Sen. Rules Com. Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 39 (2008-2009 Reg. Sess.), p. 2.) SB 39 revised the then existing immunity provided in Civil Code section 1714.5 for disaster service workers to clarify that they are not liable for civil damages resulting from any act or omission while performing disaster services anywhere within any jurisdiction covered by the emergency, other than one that is willful, by eliminating the requirement that the aid be “in the line of duty.” This resolution is the next logical step, as it would broaden the scope of the immunity to encompass non-governmental personnel who are acting in good faith, while maintaining liability for situations of gross negligence or willful misconduct. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to add California Civil Code section 1714.51 to read as follows: §1714.51 (a) There shall be no liability for civil damages on account of personal injury to or death 1 of any person or damages to property resulting from one, including any person, volunteer 2

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organization, or non-governmental organization, who provides to another, in good faith and not 3 for compensation, disaster or emergency relief supplies, food and/or water in the event of a 4 disaster or emergency, as defined in Section 8558 of the Government Code. 5 (b) Notwithstanding any other provision of law, no disaster service worker who is 6 performing disaster services during a state of war emergency, a state of emergency, or a local 7 emergency, as such emergencies are defined in Section 8558 of the Government Code, shall be 8 liable for civil damages on account of personal injury to or death of any person or damages to 9 property resulting from providing to another, in good faith, disaster or emergency relief supplies, 10 food and/or water. For purposes of this subdivision, a disaster services worker shall be 11 performing disaster services when acting within the scope of the disaster service worker’s 12 responsibilities under the authority of the governmental emergency organization. For purposes 13 of this subdivision, “governmental emergency organization” shall mean the emergency 14 organization of any state, city, city and county, county, district, or other local governmental 15 agency or public agency, which is authorized pursuant to the California Emergency Services Act 16 (Chapter 7 (commencing with Section 8550) of Division 1 of Title 2 of the Government Code). 17 (c) This section shall not be construed to grant immunity from civil damages to any 18 person, entity or agency who provides such disaster or emergency relief supplies, food and/or 19 water, to an individual with the expectation of receiving compensation from the individual for 20 providing such supplies, food and/or water. 21 (d) This section shall not be construed to grant immunity from civil damages to any 22 person, entity or agency whose conduct in providing such disaster or emergency relief supplies, 23 food and/or water constitutes gross negligence or willful misconduct. 24 (e) Nothing in this section shall be construed to alter any existing legal duties or 25 obligations. 26

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Los Angeles County Bar Association STATEMENT OF REASONS The Problem: It is not a question of whether a community or region in the State of California will suffer a catastrophic disaster or emergency, be it earthquake, flood, terroristic attack or a war emergency, but rather when. Despite ongoing efforts to prepare California, an earthquake along the San Andreas fault-line is capable of disrupting food and water supplies and existing emergencies services for weeks, and commerce, transportation and utilities for months. There are a large cadre of lay disaster relief workers and non-governmental organizations and volunteers who are poised to help in the event of a city-wide or regional emergency, with stockpiles of food, water and disaster supplies. Many work as an adjunct to the different governmental agencies, such as the fire department and emergency medical services. However, those governmental agencies and attorneys are understandably reticent to authorizing distribution by these volunteers if not NGOs of these critically needed supplies to needing neighbors and stricken members of the community out of fear of civil liability, and the unfortunate but true recognition that oftentimes no good deed goes unpunished. Similarly, in the event of a wide-spread disaster, optimally obtaining, maintaining and distributing to multitudes massive quantities of needed relief supplies, food and water, will be difficult in this markedly disrupted

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situation. In the event of a true emergency, distributing disaster relief supplies and services, well-intended responders and providers of aid should be encouraged to provide their assistance, in good faith, and without fear of liability concerning those efforts and necessities provided. The Solution: This provision takes Civil Code section 1714.5 to the next logical and needed step. In a catastrophic wide-spread state or local emergency, we cannot rely on Government services alone, particularly in the early days following the event. And even Government should not fear in its attempt to timely meet the massive needs of the public coping with a major disaster and disruption of basic living supplies and sustenance. When a proclaimed state of emergency is declared, it actually takes more than a village—particularly in the days and weeks after disaster strikes. This resolution will encourage neighbor and community to timely assist one another when it counts most. It fosters both a pragmatic understanding of the challenges presented in the availability and provision of needed materials, while encouraging civic responsibility, assistance and good turns in a nightmarishly tapped, chaotic and dire situation. IMPACT STATEMENT The proposed resolution does not affect any other law, statute or rule, but would be part of the legislation scheme concerning emergency preparedness and response in a proclaimed disaster. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Joel Douglas, Bonne Bridges Mueller O'Keefe & Nichols, PC, 3699 Wilshire Boulevard, Tenth Floor, Los Angeles, California 90010; phone: (213) 738-5834; fax: 213/738-5888; email: jdouglas@bonnebridges.com. RESPONSIBLE FLOOR DELEGATE: Joel Douglas

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RESOLUTION 03-05-2015 DIGEST Civil Code: Repeal of Conflicting Statute Regarding Cashing Check Under Protest Repeals Civil Code section 1526 in favor of the provisions of Commercial Code section 3311, which has been held to be in conflict. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: Identical to Resolution 07-08-2004, which was withdrawn; similar to Resolution 10-09-2011, which was approved in principle. Reasons: This resolution repeals Civil Code section 1526 in favor of the provisions of Commercial Code section 3311, which has been held to be in conflict. This resolution should be disapproved because Civil Code section 1526 is broader than Commercial Code section 3311, and contains rules and procedures that are not covered by Commercial Code section 3311. To resolve the conflict, the narrower of the two statutes should be repealed, as CCBA had approved through Resolution 10-09-2011. Commercial Code section 3311 was enacted after Civil Code section 1526. Both statutes include provisions regarding the effect of striking out words such as “paid in full” on negotiable instruments. Civil Code section 1526 provides that striking out such words avoids an accord and satisfaction. Commercial Code section 3311 provides that striking out such words is meaningless; if the negotiable instrument is accepted, there is an accord and satisfaction. Although these statutes are in conflict, the complete repeal of Civil Code section 1526 would eliminate additional provisions that do not conflict with Commercial Code section 3311, and are not provided for in that statute. For example, Civil Code section 1526 contains rules triggering accord and satisfaction where the parties enter into composition or extension agreements; Commercial Code section 3311 does not reference such agreements. This resolution was brought because of a mistaken belief that Resolution 10-09-2011 (which repealed Commercial Code section 3311 in favor of Civil Code section 1526) was disapproved by the conference, and because the court in Woolridge v. JFL Electric (2002) 96 Cal.App.4th Supp. 52, favored the Commercial Code over the Civil Code. However, Resolution 10-09-2011 was approved in principle, and in the Woolridge case, the court did not address the propriety of the broader provisions of Civil Code section 1526, which did not conflict with Commercial Code section 3311.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Civil Code section 1526 to read as follows: §1526 a) Where a claim is disputed or unliquidated and a check or draft is tendered by the 1 debtor in settlement thereof in full discharge of the claim, and the words "payment in full" or 2 other words of similar meaning are notated on the check or draft, the acceptance of the check or 3 draft does not constitute an accord and satisfaction if the creditor protests against accepting the 4 tender in full payment by striking out or otherwise deleting that notation or if the acceptance of 5 the check or draft was inadvertent or without knowledge of the notation. 6 (b) Notwithstanding subdivision (a), the acceptance of a check or draft constitutes an 7 accord and satisfaction if a check or draft is tendered pursuant to a composition or extension 8 agreement between a debtor and its creditors, and pursuant to that composition or extension 9 agreement, all creditors of the same class are accorded similar treatment, and the creditor 10 receives the check or draft with knowledge of the restriction. 11 A creditor shall be conclusively presumed to have knowledge of the restriction if a 12 creditor either: 13 (1) Has, previous to the receipt of the check or draft, executed a written consent to the 14 composition or extension agreement. 15 (2) Has been given, not less than 15 days nor more than 90 days prior to receipt of the 16 check or draft, notice, in writing, that a check or draft will be tendered with a restrictive 17 endorsement and that acceptance and cashing of the check or draft will constitute an accord and 18 satisfaction. 19 (c) Notwithstanding subdivision (a), the acceptance of a check or draft by a creditor 20 constitutes an accord and satisfaction when the check or draft is issued pursuant to or in 21 conjunction with a release of a claim. 22 (d) For the purposes of paragraph (2) of subdivision (b), mailing the notice by first-class 23 mail, postage prepaid, addressed to the address shown for the creditor on the debtor's books or 24 such other address as the creditor may designate in writing constitutes notice. 25

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem: The section was held to be superseded as to discharge of an unliquidated claim or a claim subject to a bona fide dispute by tendering a negotiable instrument as full satisfaction of the claim by Commercial Code §3311 AS HELD IN Woolridge v. J.F.L. Electric, Inc.(2002) 117 Cal.Rptr.2d 771, 96 Cal.App.4th Supp. 52. Commercial Code §3311 will still provide the applicable law. The Solution: This deletes the statute to harmonize the statute with the Woolridge holding. A similar resolution was proposed by the NCBA is 2011 (10-09-2011), which was not passed at the

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conference, which proposed to delete Commercial Code §3311 and leave Civil Code §1526. After a more careful reading of the Woolridge holding, the NCBA has decided to re-submit this issue to the conference, but this time, to bring the statues in line with the court’s holding. These two statutes are in irreconcilable conflict as noted in Woolridge v. J.F.L. Electric, Inc. (2002) 117 Cal.Rptr.2d 771, 96 Cal.App.4th Supp. 52 and Directors Guild of America v. Harmony Pictures, Inc. (C.D. Cal. 1994) 27 Cal.App.4th 168, 179, and is continuing to cause confusion and unnecessary litigation. One of these statutes must be repealed IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Darwin L. Bustarde, Esq., Mayfield Bustarde, LLP, 462 Stevens Ave., Suite 303, Solana Beach, CA 92075, (858) 793-8090 RESPONSIBLE FLOOR DELEGATE: Melissa L. Bustarde, Esq.

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RESOLUTION 04-01-2015 DIGEST Determination of Value: Wrongfully Taken Companion Animals Amends Penal Code section 491 to set a minimum financial value of a cat, dog or companion pet when unlawfully taken or kept from an owner. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Penal Code section 491 to set a minimum financial value of a cat, dog or companion pet when unlawfully taken or kept from an owner. This resolution should be disapproved because California courts do not allow for valuing emotional attachment in a civil action much less a criminal action. Historically, the theft of a dog has been treated as simple theft of property and the value of the property is the market value for the property. In McMahon v. Craig (2009) 176 Cal.App.4th 1502, the Fourth District Court of Appeal held: “We recognize the love and loyalty a dog provides creates a strong emotional bond between an owner and his or her dog. But given California law does not allow parents to recover for the loss of companionship of their children, we are constrained not to allow a pet owner to recover for the loss of the companionship of a pet.” (Id. at 1519-1520.) The civil court was unwilling to determine what the “intrinsic” or “emotional” value of the dog was to the plaintiff. If a civil court was unwilling to determine the emotional value of a pet that burden should not be put upon a criminal court with its higher burden of proof. This resolution should also be disapproved because its scope is too narrow in that it is limited to cats and dogs and does not include other types of pets or animals such as birds, reptiles, or rodents. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Penal Code section 491 to read as follows: §491 Dogs are personal property, and their value is to be ascertained in the same manner as the 1 value of other property. Notwithstanding, a dog or cat kept as a pet or companion has a 2 minimum value of $1,000 when unlawfully taken or kept from an owner.3

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Los Angeles County Bar Association

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STATEMENT OF REASONS The Problem: While existing law protects animals from physical cruelty and neglect (Pen. Code, § 597), they are still treated as mere chattel when stolen, whose value is determined no differently than a used toothbrush or an old tire. Section 491, last amended in 1887, reflects this sentiment. Thus, a person who kills your dog or cat may be charged with felony animal cruelty. However, if the same person were to steal your pet and cause it to disappear forever, it is a misdemeanor petty theft, unless you can prove beyond a reasonable doubt that your ‘lost property’ had a commercial value of more than $950. This excludes all but rare purebreds and overlooks the unique emotional trauma caused by the loss of one’s pet and the intrinsic value of animal companionship, whether from a mutt or a stray adopted from a shelter. The Solution: Recognizing that pet dogs and cats have an intrinsic worth to their owners far beyond any economic value, this proposal would set the minimum value of any pet dog or cat that is unlawfully taken or kept from its owner at $1,000. This allows some modicum of compensation against a perpetrator when one’s pet is lost forever, and also ensures that the theft can be investigated and prosecuted as grand theft (Pen. Code, §§ 487(a), 487e) or possession of stolen property (Pen. Code, § 496(a)) as a felony wobbler. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule, except as stated in the Solution. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Michael Fern, Los Angeles County District Attorney’s Office, 201 N. Figueroa St., Ste. 1600, Los Angeles, CA 90012, (213) 537-4529, sclawyer@gmail.com RESPONSIBLE FLOOR DELEGATE: Michael Fern

COUNTERARGMENTS TO RESOLUTION 04-01-2015 ORANGE COUNTY BAR ASSOCIATION

This resolution seeks to have the legislature set an artificial value for the worth of a dog at an amount which automatically permits the charging of a felony in all cases regardless of the actual value of the stolen canine. Adding a fictional dollar amount to the statute is patently contrary to the obvious legislative intent of section 491 as evidenced by its plain language. Current law distinguishes the value of a “mutt” from an expensive “purebred” making the theft of the average dog only a misdemeanor petty theft. (see, Penal Code §§487(e) and (f); theft of a dog valued over $950.00 is felony grand theft whereas theft of a dog under $950.00 is misdemeanor petty

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theft, respectively.) In 2010, the legislature increased the present dollar amounts for both in order to make them consistent with other theft law statutes. Further, cats are not within the purview of §491 or §§487(e) and (f) as only dogs are specifically mentioned.

It is not disputed that the loss of a pet dog or cat by theft can cause emotional trauma. However, addressing this type of emotional trauma by increased criminal penalties is open for debate. The problem, if there is one, is not rectified by this proposed solution. Perhaps if increased punishment is sought, then the addition of dogs and cats to the list of animals already set forth in Penal Code §487a offers a more viable alternative.

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RESOLUTION 04-02-2015 DIGEST Vehicle Safety: Prohibiting Tour Bus Drivers From Narrating While Driving Adds Vehicle Code section 23126 to prohibit sightseeing companies from requiring their drivers to perform any non-safety related duties while driving. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution adds Vehicle Code section 23126 to prohibit sightseeing companies from requiring their drivers to perform any non-safety related duties while driving. This resolution should be disapproved because municipalities should have the discretion to craft laws that best suit their needs. San Francisco recently enacted an ordinance prohibiting tour bus drivers from narrating while driving in the city. The legislation was a response to the October 23, 2014, death of a 68-year-old city employee who was struck in a crosswalk in front of City Hall by a Classic Cable Car trolley bus. The police investigation found the woman was in a clearly marked crosswalk with flashing yellow lights when she was struck by the tour bus moving at five miles per hour. The driver was focused on showing City Hall to his passengers instead of the road. (The Filipino Express, "San Francisco Official Drafts Ordinance as a Result of Fil-Am Woman's Crosswalk Death" (Feb. 8, 2015).) Tragic as this accident was, it is not a basis for creating a one-size-fits-all mandate. Different localities have different circumstances that may make this broad prohibition unnecessary, unworkable or simply undesirable. This is a matter that should be left up to local legislatures and public officials. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to add California Vehicle Code section 23126 to read as follows: §23126 (a) No permit or certificate holder shall require any driver of a motor vehicle, nor may 1 any driver of such motor vehicle perform, any duties during a critical phase of motor vehicle 2 operation other than those duties required for the safe operation of the vehicle. Duties such as: 3 company required calls made for non-safety related purposes; announcements made to 4 passengers promoting the company; or pointing out sights or persons of interest; and answering 5 passenger questions regarding persons or points of interest, are not required for the safe 6 operation of the vehicle. 7

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(b) No passenger may engage in, nor may driver of a vehicle permit, any activity during a 8 critical phase of motor vehicle operation which could distract any driver from the performance of 9 his or her duties or which could interfere in any way with the proper conduct of those duties. 10 Activities such as sightseeing narration, pointing out person(s) of interest, pointing out points or 11 things of interest, engaging in nonessential conversations with passengers, answering questions, 12 and nonessential communications with tour guides or other employees of the permit or certificate 13 holder are not required for the safe operation of the vehicle. 14

(c) For the purposes of this section, critical phases of operation include entering traffic, 15 parking, all operations involving any movement of the motor vehicle, and, except when lawfully 16 parked, all times when the vehicle is situated in a lane of travel upon any street, road, or 17 highway, public or private, and the vehicle’s engine is operating. 18

(d) Nothing in this section prohibits sightseeing or person of interest narration, answering 19 questions, engaging in conversations with passengers, and point of interest or other narration if 20 provided by any person who is not also the driver of the vehicle; or sightseeing and other 21 narration if provided by means of playback of a pre-recorded audio or a combination of audio 22 and video, provided that the operator of the vehicle shall not operate, stop, start, pause, or adjust 23 the playback during any critical phase of vehicle operation. 24

28

(e) As used in this section, “permit or certificate holder” refers to the holder of either a 25 California Public Utilities Commission “P” permit, “S” permit, or Class “A” Certificate used 26 while conducting “Round-trip Sightseeing,” including any combination thereof. 27

(f) In addition to any other civil or criminal penalties allowed by law, a violation of this 29 section is an infraction punishable by a base fine of one hundred dollars ($100) for the first 30 offense, two hundred dollars ($200) for the second offense occurring within one year of a prior 31 infraction that resulted in a conviction, and two hundred fifty dollars ($250) for the third or 32 subsequent infraction occurring with one year of two or more prior infractions that resulted in 33 convictions. 34

(Proposed new language underlined; language to be deleted stricken) PROPONENT: San Mateo County Bar Association STATEMENT OF REASONS The Problem: Tour bus operators are increasingly operating large vehicles in congested areas while their drivers are conducting sightseeing tours. Pedestrians are being struck and killed by drivers who are pointing out sights and persons of interest when they should be watching traffic. In front of San Francisco’s City Hall at 11:30am on October 23, 2014, a 67 year-old senior accountant in the City Controller’s Office was run over by a tourist trolley while in a crosswalk. Neither the driver nor any passengers saw her. Witnesses in the trolley told police that they were all “looking up at City Hall.” She was run over by the trolley’s wheels and dragged while, ironically, returning to City Hall from a pedestrian safety event with the mayor of San Francisco. The Solution: This resolution, drafted as a tour bus version of the FAA’s “Sterile Cockpit Rule” (Code of Federal Regulations, Sec. 121.542) prohibits targeted vehicle permit/certificate holders and drivers (Public Utilities Commission permit “P” and “S” and P.U.C. Certificate “A” holders

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operating sightseeing and tour buses) from engaging in non-essential functions while the vehicle in operation. This proposed statute mandates safe and better alternatives including the use of either tour “escorts” who ride on the bus and provide narration and sightseeing or, alternatively, audio recordings which operate automatically while the vehicle is in operation. It will save lives. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Vehicle Code sections 23123 (Wireless Telephone) and 23123.5 (Electronic Wireless Communications Device) prohibited uses. A related piece of local legislation is pending before the San Francisco Board of Supervisors; City & County of San Francisco Resolution #150119 [Transportation Code - Narration by Tour Bus Drivers] Proposed local ordinance amending the Transportation Code to prohibit drivers of tour buses not regulated as passenger stage corporations or charter party carriers from narrating while driving. AUTHOR AND/OR PERMANENT CONTACT: Rolando Pasquali, LawSuite.net, 1220 Howard Ave., Suite 250, Burlingame, CA 94010, (650)579-0100, Rolando@lawsuite.net RESPONSIBLE FLOOR DELEGATE: Rolando Pasquali

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RESOLUTION 04-03-2015 DIGEST Misdemeanors - Probable Cause Challenges by Out-of-Custody Defendants Amends Penal Code section 991 to allow out-of-custody misdemeanor defendants to move for dismissal on ten days’ notice. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Penal Code section 991 to allow out-of-custody misdemeanor defendants to move for dismissal on ten days’ notice. This resolution should be disapproved because, even though misdemeanor defendants should be allowed to challenge probable cause, there is no reason that out-of-custody defendants need to have oral motions to dismiss decided on ten days' notice. The resolution models the right to a probable cause determination on the right of a felony defendants to a probable cause determination under Penal Code section 995, which provides for a probable cause hearing on any felony charge, regardless of the defendant’s custodial status. However, section 995 addresses a concern not present in misdemeanor charges. A felony charge may be brought by the district attorney in an information (the equivalent of a misdemeanor complaint), or by the grand jury in an indictment. Section 995 provides for judicial review of probable cause for all such charges. Misdemeanors, by contrast, are always brought by means of a complaint drawn up by a prosecutor. Section 991 provides for probable cause hearings not to establish parity with the treatment of felony charges, but to implement the Constitutional requirement of prompt probable cause determinations identified by the United States Supreme Court in Gerstein v. Pugh (1975) 420 U.S. 103. The Gerstein Court held that in-custody defendants have a Fourth Amendment right to prompt determinations of probable cause for holding them on criminal charges. (Id. at pp. 114, 119-120.) This Fourth Amendment concern is not implicated for out-of-custody defendants. This resolution is related to Resolution 04-05-2015. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Penal Code section 991 to read as follows: §991

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(a) If the defendant is in custody at the time he appears before When a defendant appears 1 before a the magistrate for arraignment and if the public offense is a misdemeanor to which the 2 defendant has pleaded not guilty, the magistrate, on motion of counsel for the defendant or the 3 defendant, shall determine whether there is probable cause to believe that a public offense has 4 been committed and that the defendant is guilty thereof. 5 (b) If the defendant is in custody at the time of arraignment, Tthe determination of 6 probable cause shall be made immediately unless the court grants a continuance for good cause 7 not to exceed three court days. If the defendant is out of custody at the time of arraignment, the 8 determination of probable cause shall be made within ten calendar days of arraignment. 9 (c) In determining the existence of probable cause, the magistrate shall consider any 10 warrant of arrest with supporting affidavits, and the sworn complaint together with any 11 documents or reports incorporated by reference thereto, which, if based on information and 12 belief, state the basis for such information, or any other documents of similar reliability. 13 (d) If, after examining these documents, the court determines that there exists probable 14 cause to believe that the defendant has committed the offense charged in the complaint, it shall 15 set the matter for trial. If the court determines that no such probable cause exists, it shall 16 dismiss the complaint and discharge the defendant. 17 (e) Within 15 days of the dismissal of a complaint pursuant to this section the prosecution 18 may refile the complaint. A second dismissal pursuant to this section is a bar to any other 19 prosecution for the same offense. 20

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Los Angeles County Bar Association STATEMENT OF REASONS The Problem: Penal Code § 991 is designed to ensure that defendants do not face prolonged prosecution for baseless charges by granting defendants the right to an early probable cause hearing before a judge. If a neutral judge determines that there is no basis for the charge/s at such a hearing, the prosecution is automatically given an opportunity to re-file the case and provide additional evidence supporting the charges. The problem is that § 991 (unlike §995, its felony sister-statute) restricts the probable cause hearing to cases in which the defendant is in jail at the time of his arraignment. That means that an innocent misdemeanor defendant who is NOT in jail has no right to a probable cause hearing. Absurdly, under the current version of §991, an innocent defendant may actually be better off in jail at the time of arraignment because he can thereby ask for dismissal of a baseless case. The Solution: The proposed modification to § 991 would solve the problem by granting out of custody defendants (with appropriate notice to the court and prosecution) the right to a probable cause hearing. The flaws in the current version of § 991 are glaring, especially when one considers that, because §995 (the felony statute) has no requirement that a defendant be in custody, it is easier for a felony defendant (ie one charged with more serious offenses) to seek dismissal of baseless charges than it is for a misdemeanor defendant. For example, a felony defendant charged with assault with a deadly weapon is entitled to a probable cause determination by a judge before trial, whether he is in or out of custody at arraignment.

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However, a misdemeanor defendant charged with a non-serious case, such as shoplifting, is only eligible for a probable cause determination if he or she is in custody at the time of the arraignment. Because reforming § 991 will afford all misdemeanor defendants the same rights as felony defendants (while simultaneously clearing court dockets of baseless cases), the modification proposed above is long overdue. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Nick Stewart-Oaten RESPONSIBLE FLOOR DELEGATE: Nick Stewart-Oaten

COUNTGERARGUMENTS TO RESOLUTION 04-03-2015 SACRAMENTO COUNTY BAR ASSOCIATION Resolution 04-03-2015 would require the courts to determine if there is probable cause for detaining and charging non-custodial misdemeanor defendants. Under current law, only misdemeanor defendants held in custody are entitled to a probable cause determination. (See PEN §991(a) “If the defendant is in custody at the time he appears before the magistrate for arraignment, and if the public offense is a misdemeanor to which the defendant has pleaded not guilty, the magistrate… shall determine whether there is probable cause…”) According to the Appellate Division of the Superior Court for the State of California, County of Los Angeles decision in People v. McGowan (filed 3/27/15 BR 051696; Airport Trial Court No. 4WA22795), “The constitutional right to a judicial determination of probable cause following arrest has its roots in Gerstein v. Pugh (1975) 420 U.S. 103. In that case, the United States Supreme Court held the Fourth Amendment vests an in-custody defendant with the right to have a prompt postarrest determination of whether there is probable cause to believe he or she committed ‘a crime.’” (Id. at pp. 114, 119-120.) According to McGowan, “[Penal Code] Section 991 protects a misdemeanant from unconstitutional pretrial confinement when there is no probable cause…” (McGowan p. 6) Providing the same protection for misdemeanor defendants not in custody would, per the reasoning in McGowan, not make sense because there is no risk of “unconstitutional pretrial confinement” for those defendants. Practically speaking, probable cause determinations are not made in court hearings for many in-custody misdemeanor defendants. Rather, they are often made at the time of arrest via electronic law enforcement affidavits that are reviewed and signed by judges at all hours of the day and night, including weekends. The result is that, currently, there is little actual in-court time devoted to probable cause determinations for misdemeanor defendants. When the percentage of in-custody misdemeanants is considered (only 10% of misdemeanants are held in custody in

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many jurisdictions), Resolution 04-03-2015 would require courts to provide in-court probable cause determinations for the remaining 90% of a county’s misdemeanants, an unnecessary and costly burden. For these reasons, the Sacramento County Bar Association recommends Resolution 04-03-2015 be disapproved.

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RESOLUTION 04-04-2015 DIGEST Standardization of License Revocation Provision of Habitual Traffic Offenders Amends Vehicle Code sections 13350, 13351, and 13352 to standardize license revocation provisions of habitual traffic offenders. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Vehicle Code sections 13350, 13351, and 13352 to standardize license revocation provisions of habitual traffic offenders. This resolution should be disapproved because the Legislature has already determined that certain vehicle related offenses merit different punishments based on the severity of the offense and has provided methods to address the underlying conduct. The current statutes allow for progressive punishment of habitual traffic offenders. Habitual traffic offenders are defined under Vehicle Code section 14601.3 and include, but are not limited to, individuals with multiple moving violations, multiple accidents, two DUI/DWI violations within a set period of time. The proposed amendments to Vehicle Code sections 13350, 13351 and 13352 deal strictly with revocation of the license of individuals convicted of driving under the influence or driving while intoxicated. Under the current statutory scheme an individual convicted of these offenses faces increasingly serious punishments for their offenses. The proposed changes put all offenders in the same category. If a person is facing their second DUI they are treated the same as an individual facing their seventh DUI. The current proposal does not take into account the age of the prior offenses. Theoretically, under the proposed changes, a person convicted of a DUI in 1985 who is also convicted of a DUI in 2015, is treated the same as someone who is convicted of two DUIs within a year. Furthermore, the current five year maximum prison sentence applies to offenders convicted of section 23550.05 (an individual with a prior felony conviction of section 23152 (DUI statute) or vehicular manslaughter) or section 23566 (two or more violations of DUI with bodily injury). It is extreme to punish individuals with non-injury or non-felonious DUIs with the same punishment as a driver who killed an individual while driving under the influence or caused two or more accidents that caused bodily injury.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend Vehicle Code sections 13350, 13351 and 13352 to read as follows: §13350 (a) The department immediately shall revoke the privilege of a person to drive a motor 1 vehicle upon receipt of a duly certified abstract of the record of a court showing that the person 2 has been convicted of any of the following crimes or offenses: 3 (1) Failure of the driver of a vehicle involved in an accident resulting in injury or death to 4 a person to stop or otherwise comply with Section 20001. 5 (2) A felony in the commission of which a motor vehicle is used, except as provided in 6 Section 13351, 13352, or 13357. 7 (3) Reckless driving causing bodily injury. 8 (4) A person with no more than one prior conviction of Section 23152 9 (b) If a person is convicted of a violation of Section 23152 punishable under 23546, 10 23550, or 23550.5 or 23566, or a violation of Section 23153 punishable under Section 23550.5 11 or 23566, including a violation of subdivision (b) of Section 191.5 of Penal Code as provided in 12 Section 193.7 of that code, the court shall, at that time of surrender of the driver’s temporary 13 permit, require the defendant to sign an affidavit in a form provided by the department 14 acknowledging his or her understanding of the revocation and an acknowledgment of his or her 15 designation as a habitual traffic offender. A copy of this affidavit shall be transmitted, with the 16 license or temporary permit, to the department within the prescribed 10 days. 17 (c) The department shall not reinstate the privilege revoked under subdivision (a) until 18 the expiration of one year after the date of revocation and until the person whose privilege was 19 revoked gives proof of financial responsibility as defined in Section 16430. 20 (d) The department shall not reinstate the privilege revoked under subdivision (b) until 21 the expiration of five years after the date of revocation and until the person whose privilege was 22 revoked gives proof of financial responsibility as defined in Section 16430 23 24 §13551 25 (a) The department immediately shall revoke the privilege of person to drive a motor 26 vehicle upon receipt of a duly certified abstract of the record of a court showing that the person 27 has been convicted of any of the following crimes or offenses: 28 (1) Manslaughter resulting from the operation of a motor vehicle, except when convicted 29 under paragraph (2) of subdivision (c) of Section 192 of the Penal Code. 30 (2) Conviction of three or more violations of Section 20001,20002, 23103, 23104, or 31 23105 within a period of 12 months from the time of the first offense to the third or subsequent 32 offense, or a combination of three or more convictions of violations within the same period. 33 (3) Violation of subdivision (a) of Section 191.5 or subdivision (a) of Section 192.5 of 34 the Penal Code or of Section 2800.3 causing serious bodily injury resulting in a serious 35 impairment of physical condition, including, but not limited to, loss of consciousness, 36 concussion, serious bone fracture, protracted loss or impairment of function of any bodily 37 member or organ, and serious disfigurement. 38

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(b) The department shall not reinstate the privilege revoked under subdivision (a) until 39 the expiration of three years after the date of revocation and until the person whose privilege was 40 revoked gives proof of financial responsibility, as defined in Section 16430. 41 42 §13352 43 (a) The department shall immediately suspend or revoke the privilege of a person to 44 operate a motor vehicle upon the receipt of an abstract of the record of a court showing that the 45 person has been convicted of a violation of Section 23152 or 23153, subdivision (a) of Section 46 23109, or Section 23109.1, or upon the receipt of a report of a judge of the juvenile court, a 47 juvenile traffic hearing officer, or a referee of a juvenile court showing that the person has been 48 found to have committed a violation of Section 23152 or 23153 or subdivision (a) of Section 49 23109 or Section 23109.1. If an offense specified in this section occurs in a vehicle defined in 50 Section 15210, the suspension or revocation specified below shall apply to the noncommercial 51 driving privilege. The commercial driving privilege shall be disqualified as specified in Sections 52 15300 to 15302, inclusive. For the purposes of this section, suspension or revocation shall be as 53 follows: 54 (1) Except as required under Section 13352.1 or 13352.4, upon a conviction or finding of 55 a violation of Section 23152 punishable under Section 23536, the privilege shall be suspended 56 for a period of six months. The privilege shall not be reinstated until the person gives proof of 57 financial responsibility and gives proof satisfactory to the department of successful completion 58 of a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and 59 Safety Code described in subdivision (b) of Section 23538. If the court, as authorized under 60 paragraph (3) of subdivision (b) of Section 23646, elects to order a person to enroll in, participate 61 in, and complete either program described in subdivision (b) of Section 23542, the department 62 shall require that program in lieu of the program described in subdivision (b) of Section 23538. 63 For the purposes of this paragraph, enrollment in, participation in, and completion of an 64 approved program shall be subsequent to the date of the current violation. Credit shall not be 65 given to any program activities completed prior to the date of the current violation. (2) Upon a 66 conviction or finding of a violation of Section 23153 punishable under Section 23554, the 67 privilege shall be suspended for a period of one year. The privilege shall not be reinstated until 68 the person gives proof of financial responsibility and gives proof satisfactory to the department 69 of successful completion of a driving-under-the-influence program licensed pursuant to Section 70 11836 of the Health and Safety Code as described in subdivision (b) of Section 23556. If the 71 court, as authorized under paragraph (3) of subdivision (b) of Section 23646, elects to order a 72 person to enroll in, participate in, and complete either program described in subdivision (b) of 73 Section 23542, the department shall require that program in lieu of the program described in 74 Section 23556. For the purposes of this paragraph, enrollment, participation, and completion of 75 an approved program shall be subsequent to the date of the current violation. Credit shall not be 76 given to any program activities completed prior to the date of the current violation. (3) Except as 77 provided in Section 13352.5, upon a conviction or finding of a violation of Section 23152 78 punishable under Section 23540, the privilege shall be suspended for two years. The privilege 79 shall not be reinstated until the person gives proof of financial responsibility and gives proof 80 satisfactory to the department of successful completion of a driving-under-the-influence program 81 licensed pursuant to Section 11836 of the Health and Safety Code as described in subdivision (b) 82 of Section 23542. For the purposes of this paragraph, enrollment in, participation in, and 83 completion of an approved program shall be subsequent to the date of the current violation. 84

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Credit shall not be given to any program activities completed prior to the date of the current 85 violation. The department shall advise the person that he or she may apply to the department for 86 a restriction of the driving privilege, which may include credit for a suspension period served 87 under subdivision (c) of Section13353.3, subject to the following conditions: (A)Completion of 88 12 months of the suspension period, or completion of 90 days of the suspension period if the 89 underlying conviction did not include the use of drugs as defined in Section 312 and the person 90 was found to be only under the influence of an alcoholic beverage at the time of the violation. 91 (B) The person satisfactorily provides, subsequent to the violation date of the current 92 underlying conviction, either of the following: 93 (i) Proof of enrollment in an 18-month driving-under-the-influence program licensed 94 pursuant to Section 11836 of the Health and Safety Code. 95 (ii) Proof of enrollment in a 30-month driving-under-the-influence program licensed 96 pursuant to Section 11836 of the Health and Safety Code, if available in the county of the 97 person's residence or employment. 98 (C) The person agrees, as a condition of the restriction, to continue satisfactory 99 participation in the program described in subparagraph (B). 100 (D) The person submits the "Verification of Installation" form described in paragraph (2) 101 of subdivision (g) of Section 13386. 102 (E) The person agrees to maintain the ignition interlock device as required under 103 subdivision (g) of Section 23575. 104 (F) The person provides proof of financial responsibility, as defined in Section 16430. 105 (G) The person pays all reissue fees and any restriction fee required by the department. 106 (H) The person pays to the department a fee sufficient to cover the costs of administration 107 of this paragraph, as determined by the department. 108 (I) The restriction shall remain in effect for the period required in subdivision (f) of 109 Section 23575. 110 (4) Except as provided in this paragraph, upon a conviction or finding of a violation of 111 Section 23153 punishable under Section 23560, the privilege shall be revoked for a period of 112 three years .The privilege may not be reinstated until the person gives proof of financial 113 responsibility, and the person gives proof satisfactory to the department of successful completion 114 of a driving-under-the-influence program licensed pursuant to Section11836 of the Health and 115 Safety Code, as described in paragraph (4) of subdivision (b) of Section 23562 of this code. For 116 the purposes of this paragraph, enrollment in, participation in, and completion of an approved 117 program shall be subsequent to the date of the current violation. Credit shall not be given to any 118 program activities completed prior to the date of the current violation. The department shall 119 advise the person that after the completion of 12 months of the revocation period, which may 120 include credit for a suspension period served under subdivision (c) of Section 13353.3, the 121 person may apply to the department for a restricted driver's license, subject to the following 122 conditions: 123 (A) The person has satisfactorily completed, subsequent to the Violation date of the 124 current underlying conviction, either of the following: 125 (i) The initial 12 months of an 18-month Driving - under-the-influence program licensed 126 pursuant to Section11836 of the Health and Safety Code. 127 (ii) The initial 12 months of a 30-monthDriving -under-the-influence program licensed 128 pursuant to Section 11836 of the Health and Safety Code, if available in the county of the 129

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person's residence or employment, and the person agrees, as a condition of the restriction, to 130 continue satisfactory participation in that 30-month program. 131 (B) The person submits the "Verification of Installation" form described in paragraph (2) 132 of subdivision (g) of Section 13386. 133 (C) The person agrees to maintain the ignition interlock device as required under 134 subdivision (g) of Section 23575. 135 (D) The person provides proof of financial responsibility, as defined in Section 16430. 136 (E) The person pays all applicable reinstatement or reissue fees and any restriction fee 137 required by the department. 138 (F) The restriction shall remain in effect for the period required in subdivision (f) of 139 Section 23575. 140 (5) Except as provided in this paragraph, upon a conviction or finding of a violation of 141 Section 23152 punishable under Section 23546, the privilege shall be revoked for a period of 142 three five years. The privilege shall not be reinstated until the person files proof of financial 143 responsibility and gives proof satisfactory to the department of successful completion of one of 144 the following programs: an 18-month driving-under-the-influence program licensed pursuant to 145 Section 11836 of the Health and Safety Code, as described in subdivision (b) or (c) of Section 146 23548 of this code, or, if available in the county of the person's residence or employment, a 30-147 month driving-under-the-influence program licensed pursuant to Section 11836 of the Health and 148 Safety Code, or a program specified in Section 8001 of the Penal Code. For the purposes of this 149 paragraph, enrollment in, participation in, and completion of an approved program shall be 150 subsequent to the date of the current violation. Credit shall not be given to any program activities 151 completed prior to the date of the current violation. The department shall advise the person that 152 he or she may apply to the department for a restriction of the driving privilege, which may 153 include credit for a suspension period served under subdivision (c) of Section 13353.3, subject to 154 the following conditions: 155 (A) Completion of 12 months of the suspension period, or completion of six months of 156 the suspension period if the underlying conviction did not include the use of drugs as defined in 157 Section 312 and the person was found to be only under the influence of an alcoholic beverage at 158 the time of the violation. (B) The person satisfactorily provides, subsequent to the violation date 159 of the current underlying conviction, either of the following: 160 (i) Proof of enrollment in an 18-month driving-under-the-influence program licensed 161 pursuant to Section 11836 of the Health and Safety Code. 162 (ii) Proof of enrollment in a 30-month driving-under-the-influence program licensed 163 pursuant to Section 11836 of the Health and Safety Code, if available in the county of the 164 person's residence or employment, and the person agrees, as a condition of the restriction to 165 continue satisfactory participation in the 30-monthdriving-under-the-influence program. 166 (C) The person submits the "Verification of Installation" form described in paragraph (2) 167 of subdivision (g) of Section 13386 168 (D) The person agrees to maintain the ignition interlock device as required under 169 subdivision (g) of Section 23575. 170 (E) The person provides proof of financial responsibility, as defined in Section 16430. 171 (F) An individual convicted of a violation of Section 23152punishable under Section 172 23546 may also, at any time after sentencing, petition the court for referral to an 18-month 173 driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety 174 Code, or, if available in the county of the person's residence or employment, a 30-monthdriving-175

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under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code. 176 Unless good cause is shown, the court shall order the referral. 177 (G) The person pays all applicable reinstatement or reissue fees and any restriction fee 178 required by the department. (H) The person pays to the department a fee sufficient to cover the 179 costs of administration of this paragraph, as determined by the department. 180 (I) The restriction shall remain in effect for the period required in subdivision (f) of 181 Section 23575. 182 (6) Except as provided in this paragraph, upon a conviction or finding of a violation of 183 Section 23153 punishable under Section 23550.5 or 23566, the privilege shall be revoked for a 184 period of five years. The privilege may not be reinstated until the person gives proof of financial 185 responsibility and gives proof satisfactory to the department of successful completion of a 186 driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety 187 Code as described in subdivision (b) of Section 23568, or if available in the county of the 188 person's residence or employment, a 30-month driving-under-the-influence program licensed 189 pursuant to Section 11836 of the Health and Safety Code, or a program specified in Section 8001 190 of the Penal Code. For the purposes of this paragraph, enrollment in, participation in, and 191 completion of an approved program shall be subsequent to the date of the current violation. 192 Credit shall not be given to any program activities completed prior to the date of the current 193 violation. The department shall advise the person that after completion of 12 months of the 194 revocation period, which may include credit for a suspension period served under subdivision (c) 195 of Section 13353.3, the person may apply to the department for a restricted driver's license, 196 subject to the following conditions: 197 (A) The person has satisfactorily provided, subsequent to the violation date of the current 198 underlying conviction, either of the following: 199 (i) Completion of the initial 12 months of a 30-monthdriving-under-the-influence 200 program licensed pursuant to Section 11836 of the Health and Safety Code, if available in the 201 county of the person's residence or employment, and the person agrees, as a condition of the 202 restriction, to continue satisfactory participation in the 30-month driving-under-the-influence 203 program. 204 (ii) Completion of the initial 12 months of an 18-monthdriving-under-the-influence 205 program licensed pursuant to Section 11836 of the Health and Safety Code, if a 30-month 206 program is unavailable in the person's county of residence or employment. 207 (B) The person submits the "Verification of Installation" form described in paragraph (2) 208 of subdivision (g) of Section 13386. 209 (C) The person agrees to maintain the ignition interlock device as required under 210 subdivision (g) of Section 23575. 211 (D) The person provides proof of financial responsibility, as defined in Section 16430. 212 (E) An individual convicted of a violation of Section 23153punishable under Section 213 23566 may also, at any time after sentencing, petition the court for referral to an 18-214 monthdriving-under-the-influence program licensed pursuant to Section 11836 of the Health and 215 Safety Code, or, if available in the county of the person's residence or employment, a 30-216 monthdriving-under-the-influence program licensed pursuant to Section 11836 of the Health and 217 Safety Code. Unless good cause is shown, the court shall order the referral. 218 (F) The person pays all applicable reinstatement or reissue fees and any restriction fee 219 required by the department. 220

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(G) The restriction shall remain in effect for the period required in subdivision (f) of 221 Section 23575. 222 (7) Except as provided in this paragraph, upon a conviction or finding of a violation of 223 Section 23152 punishable under Section 23550 or 23550.5, or of a violation of Section 23153 224 punishable under Section 23550.5, the privilege shall be revoked for a period of four (five) years. 225 The privilege shall not be reinstated until the person files proof of financial responsibility and 226 gives proof satisfactory to the department of successful completion of an 18-month driving-227 under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, 228 or, if available in the county of the person's residence or employment, a 30-month driving-229 under-the-influence program licensed pursuant to Section11836 of the Health and Safety Code, 230 or a program specified in Section 8001 of the Penal Code. For the purposes of this paragraph, 231 enrollment in, participation in, and completion of an approved program shall be subsequent to 232 the date of the current violation .Credit shall not be given to any program activities completed 233 prior to the date of the current violation. The department shall advise the person that after 234 completion of 12 months of the revocation period, which may include credit for a suspension 235 period served under subdivision (c) of Section 13353.3, the person may apply to the department 236 for a restricted driver's license, subject to the following conditions: 237 (A) The person has satisfactorily completed, subsequent to the violation date of the 238 current underlying conviction, either of the following: 239 (i) The initial 12 months of an 18-month driving-under-the-influence program licensed 240 pursuant to Section11836 of the Health and Safety Code. 241 (ii) The initial 12 months of a 30-month driving-under-the-influence program licensed 242 pursuant to Section 11836 of the Health and Safety Code, if available in the county of the 243 person's residence or employment, and the person agrees, as a condition of the restriction, to 244 continue satisfactory participation in the 30-month driving-under-the-influence program. 245 (B) The person submits the "Verification of Installation" form described in paragraph (2) 246 of subdivision (g) of Section 13386. 247 (C) The person agrees to maintain the ignition interlock device as required under 248 subdivision (g) of Section 23575. 249 (D) The person provides proof of financial responsibility, as defined in Section 16430. 250 (E) An individual convicted of a violation of Section 23152 punishable under Section 251 23550 may also, at any time after sentencing, petition the court for referral to an 18-month 252 driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety 253 Code, or, if available in the county of the person's residence or employment, a 30-monthdriving-254 under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code. 255 Unless good cause is shown, the court shall order the referral. 256 (F) The person pays all applicable reinstatement or reissue fees and any restriction fee 257 required by the department. 258 (G) The restriction shall remain in effect for the period required in subdivision (f) of 259 Section 23575. 260 (8) Upon a conviction or finding of a violation of subdivision (a)of Section 23109 that is 261 punishable under subdivision (e) of that section or Section 23109.1, the privilege shall be 262 suspended for a period of 90 days to six months, if ordered by the court. The privilege shall not 263 be reinstated until the person gives proof of financial responsibility, as defined in Section 16430. 264 (9) Upon a conviction or finding of a violation of subdivision (a) of Section 23109 that is 265 punishable under subdivision (f) of that section, the privilege shall be suspended for a period of 266

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six months, if ordered by the court. The privilege shall not be reinstated until the person gives 267 proof of financial responsibility, as defined in Section 16430. 268 (b) For the purpose of paragraphs (2) to (9), inclusive, of subdivision (a), the finding of 269 the juvenile court judge, the juvenile hearing officer, or the referee of a juvenile court of a 270 commission of a violation of Section 23152 or 23153 or subdivision (a) of Section 23109 or 271 Section 23109.1, as specified in subdivision (a) of this section, is a conviction. 272 (c) A judge of a juvenile court, juvenile hearing officer, or referee of a juvenile court 273 shall immediately report the findings specified in subdivision (a) to the department. 274 (d) A conviction of an offense in a state, territory, or possession of the United States, the 275 District of Columbia, the Commonwealth of Puerto Rico, or Canada that, if committed in this 276 state, would be a violation of Section 23152, is a conviction of Section 23152 for the purposes of 277 this section, and a conviction of an offense that, if committed in this state, would be a violation 278 of Section 23153, is a conviction of Section 23153 for the purposes of this section. The 279 department shall suspend or revoke the privilege to operate a motor vehicle pursuant to this 280 section upon receiving notice of that conviction. 281 (e) For the purposes of the restriction conditions specified in paragraphs (3) to (7), 282 inclusive, of subdivision (a), the department shall terminate the restriction imposed pursuant to 283 this section and shall suspend or revoke the person's driving privilege upon receipt of notification 284 from the driving-under-the-influence program that the person has failed to comply with the 285 program requirements. The person's driving privilege shall remain suspended or revoked for the 286 remaining period of the original suspension or revocation imposed under this section and until all 287 reinstatement requirements described in this section are met. (f) For the purposes of this section, 288 completion of a program is the following: 289 (1) Satisfactory completion of all program requirements approved pursuant to program 290 licensure, as evidenced by a certificate of completion issued, under penalty of perjury, by the 291 licensed program. 292 (2) Certification, under penalty of perjury, by the director of a program specified in 293 Section 8001 of the Penal Code, that the person has completed a program specified in Section 294 8001 of the Penal Code. 295 (g) The holder of a commercial driver's license who was operating a commercial motor 296 vehicle, as defined in Section 15210, at the time of a violation that resulted in a suspension or 297 revocation of the person's noncommercial driving privilege under this section is not eligible for 298 the restricted driver's license authorized under paragraphs (3) to (7), inclusive, of subdivision (a). 299

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Michele Anderson, Christopher Bobo, Aracelli Almazan, Margo Bouchet, Susan Couig, Carolyn Phillips, Alan Ramos, Danielle Pauljohn, Carmen Hawkins, Bernie Brown, Ahda Sands STATEMENT OF REASONS The Problem: 10,000 people are killed and 290,000 people are injured by persons that are driving under the influence of alcohol. Additionally, many of these drivers are repeat offenders (30%) Other habitual traffic violators, such as those that commit multiple violations of hit and run, may also result in serious bodily injury or death. Additionally, there are violations involving

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grossly negligent conduct resulting in death, such as driving at high rates of speeds. The current law revokes the license of offenders for three, four and five years based upon the offense charged. However, the impact, damages and cost associated which caused these violations are very serious and similar in nature and therefore should suffer the same consequences as a result of the committed violation. Therefore, it is recommended that the licenses revocations be for the same length of time in order to protect the community and to deter future conduct. The Solution: Standardizing the revocation of all habitual traffic offenders to five years would protect the public from preventable injuries and death and would act as a deterrent. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Michele Anderson, Office of the Los Angeles City Attorney, 11701 S. La Cienega, Los Angeles, CA 90045 (310) 202-3827 Michele.Anderson@lacity.org RESPONSIBLE FLOOR DELEGATE: Michele Anderson

COUNTERARGUMENTS TO RESOLUTION 04-04-2015 ORANGE COUNTY BAR ASSOCIATION This resolution, inter alia, seeks to add a second driving under the influence conviction to the list of offenses under which the Department of Motor Vehicles (DMV) must revoke the individual’s driving privilege. No one disputes the seriousness of the DUI offenses or the harm caused to property and life. However, this proposed increased punishment does little if anything to increase public safety and burdens the offender to the point where compliance is too cumbersome. Many communities in this state do not possess adequate public transportation. Few offenders live within walking distance to their place of employment or the location of the court ordered driving under the influence program. Disallowing the offender the ability to get a restricted license to do these activities forces the offender into the proverbial catch-22 situation; that is, risk violating the law by unlawfully driving to comply with the court orders or violating the court orders by not attending the program or paying the fines because of the inability to lawfully drive. Current law authorizes a two year suspension of the driving privilege for the second DUI conviction and permits under specified conditions the issuance of a restricted driver’s license by the DMV. The court has the discretion to prohibit the issuance by the department of the restricted license during the suspension period if the court deems the person a public safety risk. Resort to the ignition interlock device may also be utilized. This is sufficient to safeguard the public while promoting rehabilitation of the second time offender.

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RESOLUTION 04-05-2015 DIGEST Misdemeanors - Dismissal of Individual Charges Against In-Custody Defendants Amends Penal Code section 991 to authorize motions for dismissal of specific offenses in misdemeanor complaints by in-custody defendants. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Penal Code section 991 to authorize motions for dismissal of specific offenses in misdemeanor complaints by in-custody defendants. This resolution should be approved in principle because it provides a needed mechanism for dismissal of meritless misdemeanor charges. Section 991 provides for probable cause hearings in order to implement the Constitutional requirement of prompt probable cause determinations identified by the United States Supreme Court in Gerstein v. Pugh (1975) 420 U.S. 103. The Gerstein Court held that in-custody defendants have a Fourth Amendment right to prompt determinations of probable cause for holding them on criminal charges. (Id. at pp. 114, 119-120.) Because in-custody misdemeanor defendants already have the right to a probable cause hearing, both the defendants and the courts should be permitted the flexibility to address individual charges within the misdemeanor complaint. Dismissing meritless charges will address the issue of custody in many cases, even if charges remain, because bail and “own recognizance” determinations will be made based on the remaining offenses in the complaint, which in some cases will be less severe than those that have been dismissed. This resolution is related to Resolution 04-03-2015. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Penal Code section 991 to read as follows: §991 (a) If the defendant is in custody at the time he appears before the magistrate for 1 arraignment and, if the public offense is a misdemeanor to which the defendant has pleaded not 2 guilty, the magistrate, on motion of counsel for the defendant or the defendant, shall determine 3 whether there is probable cause to believe that a public offense each of the charged 4

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misdemeanors alleged in the complaint has been committed and that the defendant is guilty 5 thereof. 6 (b) The determination of probable cause shall be made immediately unless the court 7 grants a continuance for good cause not to exceed three court days. 8 (c) In determining the existence of probable cause, the magistrate shall consider any 9 warrant of arrest with supporting affidavits, and the sworn complaint together with any 10 documents or reports incorporated by reference thereto, which, if based on information and 11 belief, state the basis for such information, or any other documents of similar reliability. 12 (d) If, after examining these documents, the court determines that there exists probable 13 cause to believe that the defendant has committed the challenged offense charged in the 14 complaint, it shall set the matter for trial. If the court determines that no such probable cause 15 exists as to any challenged offense, it shall dismiss the challenged offense complaint and 16 discharge the defendant. 17 (e) Within 15 days of the dismissal of a complaint pursuant to this section the prosecution 18 may refile the complaint. A second dismissal pursuant to this section is a bar to any other 19 prosecution for the same offense. 20

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Los Angeles County Bar Association STATEMENT OF REASONS The Problem: Penal Code § 991, like §995 (its felony sister-statute) is designed to ensure that defendants do not face prolonged prosecution for baseless charges by granting defendants the right to an early probable cause hearing before a judge. If a neutral judge determines that there is no basis for the charge/s at such a hearing, the prosecution is automatically given an opportunity to re-file the case and provide additional evidence supporting the charges. The problem is that while §995 (the felony statute) is quite clear that it applies to any charge faced by the Defendant, § 991 alternatively references a challenge to “the offense” and to “the complaint.” The result is that a minority of courts have taken the position that the court may not dismiss a baseless charge under § 991 unless EVERY charge faced by the Defendant is baseless. This poor wording quickly leads to absurd results – for example, under this interpretation, a FELONY defendant has an easier time seeking dismissal of baseless charges than does a misdemeanor defendant. The Solution: The proposed modification of §991 will clarify that, like §995, §991 permits challenges to individual baseless charges. To illustrate by example: Defendant A is charged with possession of a knife and assault with a knife as misdemeanors. There is no evidentiary support for the assault charge (ie no witness, forensic evidence or any other evidence supports the charge). However, the Defendant did have a knife in his pocket when stopped by the police. Under one interpretation of § 991, the Defendant could NOT challenge the assault charge at a probable cause hearing because there is a factual basis for the OTHER charge (possession of the knife).In contrast, the proposed modification of § 991 will allow the Defendant to challenge the baseless assault charge at a probable cause hearing. Because cleaning up the language of § 991 will afford misdemeanor defendants the same rights as felony defendants (while simultaneously clearing court dockets of baseless cases), the modification proposed above is long overdue.

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IMPACT STATEMENT This Resolution will not affect any other statute or case law. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Nick Stewart-Oaten RESPONSIBLE FLOOR DELEGATE: Nick Stewart-Oaten

COUNTERARGUMENTS TO RESOLUTION 04-05-2015 SACRAMENTO COUNTY BAR ASSOCIATION Resolution 04-05-2015 would require the courts to determine if there is probable cause for detaining and charging misdemeanor defendants on any of the counts in the complaint. Under current law, only misdemeanor defendants held in custody are entitled to probable cause determinations. (See PEN §991(a) “If the defendant is in custody at the time he appears before the magistrate for arraignment, and if the public offense is a misdemeanor to which the defendant has pleaded not guilty, the magistrate… shall determine whether there is probable cause…”). Also of significance, the review at a probable cause hearing is to determine whether or not there is a reasonable basis to continue to detain the defendant. (See PEN §991(c) “If, after examining these documents, the court determines that there exists probable cause to believe that the defendant has committed the offense charged in the complaint, it shall set the matter for trial.” Emphasis added.) The probable cause hearing is to review the offense, not the individual charges, which are dealt with either through negotiation and plea between the defendant and the People, or at trial. According to the Appellate Division of the Superior Court for the State of California, County of Los Angeles decision in People v. McGowan (filed 3/27/15 BR 051696; Airport Trial Court No. 4WA22795), “The constitutional right to a judicial determination of probable cause following arrest has its roots in Gerstein v. Pugh (1975) 420 U.S. 105. In that case, the United States Supreme Court held the Fourth Amendment vests an in-custody defendant with the right to have a prompt postarrest determination of whether there is probable cause to believe he or she committed ‘a crime.’” (Id. at pp. 114, 119-120.) According to McGowan, “[Penal Code] Section 991 protects a misdemeanant from unconstitutional pretrial confinement when there is no probable cause…” (McGowan p. 6) The probable cause hearing, then, is not the place or procedure at which to debate the individual charges as the proponent suggests, but to ensure that there is no risk of “unconstitutional pretrial confinement.” Practically speaking, probable cause determinations are not made in court hearings for many in-custody misdemeanor defendants. Rather, they are often made at the time of arrest via electronic law enforcement affidavits that are reviewed and signed by judges at all hours of the day and night, including weekends. The result is that, currently, there is little actual in-court time

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devoted to probable cause determinations for misdemeanor defendants. In order to review the individual charges as recommended in 04-05-2015, the court would conduct what amounts to an evidentiary hearing, as opposed to a probable cause determination. With some exceptions, probable cause determinations are not testimonial hearings that allow for discovery. Usually, probable cause determinations rely on arrest records. Converting a probable cause determination into an evidentiary hearing for misdemeanor defendants is an enormous waste of court resources, and will add, if not encourage, delays at court owing to the discovery motions and the exchange of information between the sides. The additional time required for discovery and presentation of evidence in addition to the arrest record is best left to the plea negotiations or trial. For these reasons, the Sacramento County Bar Association recommends Resolution 04-05-2015 be disapproved. Resolution 04-05-2015 would require the courts to determine if there is probable cause for detaining and charging misdemeanor defendants on any of the counts in the complaint. Under current law, only misdemeanor defendants held in custody are entitled to probable cause determinations. (See PEN §991(a) “If the defendant is in custody at the time he appears before the magistrate for arraignment, and if the public offense is a misdemeanor to which the defendant has pleaded not guilty, the magistrate… shall determine whether there is probable cause…”). Also of significance, the review at a probable cause hearing is to determine whether or not there is a reasonable basis to continue to detain the defendant. (See PEN §991(c) “If, after examining these documents, the court determines that there exists probable cause to believe that the defendant has committed the offense charged in the complaint, it shall set the matter for trial.” Emphasis added.) The probable cause hearing is to review the offense, not the individual charges, which are dealt with either through negotiation and plea between the defendant and the People, or at trial. According to the Appellate Division of the Superior Court for the State of California, County of Los Angeles decision in People v. McGowan (filed 3/27/15 BR 051696; Airport Trial Court No. 4WA22795), “The constitutional right to a judicial determination of probable cause following arrest has its roots in Gerstein v. Pugh (1975) 420 U.S. 105. In that case, the United States Supreme Court held the Fourth Amendment vests an in-custody defendant with the right to have a prompt postarrest determination of whether there is probable cause to believe he or she committed ‘a crime.’” (Id. at pp. 114, 119-120.) According to McGowan, “[Penal Code] Section 991 protects a misdemeanant from unconstitutional pretrial confinement when there is no probable cause…” (McGowan p. 6) The probable cause hearing, then, is not the place or procedure at which to debate the individual charges as the proponent suggests, but to ensure that there is no risk of “unconstitutional pretrial confinement.” Practically speaking, probable cause determinations are not made in court hearings for many in-custody misdemeanor defendants. Rather, they are often made at the time of arrest via electronic law enforcement affidavits that are reviewed and signed by judges at all hours of the day and night, including weekends. The result is that, currently, there is little actual in-court time devoted to probable cause determinations for misdemeanor defendants. In order to review the individual charges as recommended in 04-05-2015, the court would conduct what amounts to an evidentiary hearing, as opposed to a probable cause determination. With some exceptions, probable cause determinations are not testimonial hearings that allow for discovery. Usually, probable cause determinations rely on arrest records. Converting a probable cause determination into an evidentiary hearing for misdemeanor defendants is an enormous waste of court resources,

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and will add, if not encourage, delays at court owing to the discovery motions and the exchange of information between the sides. The additional time required for discovery and presentation of evidence in addition to the arrest record is best left to the plea negotiations or trial. For these reasons, the Sacramento County Bar Association recommends Resolution 04-05-2015 be disapproved.

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RESOLUTION 04-06-2015 DIGEST Criminal Law: Banning Declawing of Domestic Cats Amends Penal Code section 597.6 to ban the declawing of domestic cats. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Penal Code section 597.6 to ban the declawing of domestic cats. This resolution should be approved in principle because the amputation of a portion of an animal’s feet is unnecessary and inhumane. Declawing is not merely the removal of a cat's nails. It involves the amputation of the last bone of each toe with a scalpel or guillotine clipper, or by use of a laser to vaporize the tissue. If performed on a human being, it would be like cutting off each finger at the last knuckle. It is an unnecessary surgery that provides no medical benefit to the cat and can cause lasting physical problems. Another method is to sever the tendon that controls the claw in each toe, allowing the cat to keep his or her claws but making it impossible to extend them to scratch. This procedure is associated with a high incidence of abnormally thick claw growth, often leading to the need to surgically declaw at a later time. As with any surgery, there are risks of bleeding, nerve damage and infections, and all of these procedures carry the risks of tissue necrosis, lameness, bone spurs and back pain. (The Humane Society of the United States, "Declawing Cats: Far Worse Than a Manicure" (May 12, 2014) [http://www.humanesociety.org/animals/cats/tips/declawing.html].) A prohibition of declawing may discourage some people from adopting a cat, resulting in a greater number of animals being euthanized. And there can be legitimate concerns about the risk of being scratched, such as where the owner is immuno-suppressed or where there are small children in the home. However, there are many non-surgical alternatives to declawing, starting with training and regular trimming. The procedure is illegal in most European countries, including Britain where it is considered cruelty to animals. In Israel, declawing a cat could result in a yearlong prison sentence and a fine around $20,000. Declawing and tendonectomies should be reserved only for those rare cases in which a cat has a medical problem that would warrant such surgery.

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TEXT OF RESOLUTION RESOLVED, that the Conference of California Bar Associations recommends that legislation be sponsored to amend California Penal Code section 597.6 to read as follows §597.6 (a)(1) No person may perform, or otherwise procure or arrange for the performance of, 1 surgical claw removal, declawing, onychectomy, or tendonectomy on any cat that is a member of 2 an exotic or native wild cat species, and shall not otherwise alter such a cat's toes, claws, or paws 3 to prevent the normal function of the cat's toes, claws, or paws. 4 (2) This subdivision does not apply to a procedure performed solely for a therapeutic 5 purpose. 6 (b) Any person who violates this section is guilty of a misdemeanor punishable by 7 imprisonment in a county jail for a period not to exceed one year, by a fine of ten thousand 8 dollars ($10,000), or by both that imprisonment and fine. 9 (c) For purposes of this section, the following terms have the following meanings: 10 (1) “Declawing” and “onychectomy” mean any surgical procedure in which a portion of 11 the animal's paw is amputated in order to remove the animal's claws. 12 (2) “Tendonectomy” means a procedure in which the tendons to an animal's limbs, paws, 13 or toes are cut or modified so that the claws cannot be extended. 14 (3) “Cat Exotic or native wild cat species” includes all members of the taxonomic family 15 Felidae, except domestic cats (Felis catus or Felis domesticus) or hybrids of wild and domestic 16 cats that are greater than three generations removed from an exotic or native cat. “Exotic or 17 native wild cat species” including, but are not limited to, domestic cats, feral cats, lions, tigers, 18 cougars, leopards, lynxes, bobcats, caracals, ocelots, margays, servals, cheetahs, snow leopards, 19 clouded leopards, jungle cats, leopard cats, and jaguars, or any hybrid thereof. 20 (4) “Therapeutic purpose” means for the purpose of addressing an existing or recurring 21 infection, disease, injury, or abnormal condition in the claw that jeopardizes the cat's health, 22 where addressing the infection, disease, injury, or abnormal condition is a medical necessity. 23

(Proposed language underlined, language to be deleted stricken) PROPONENT: San Mateo County Bar Association STATEMENT OF REASONS The Problem: Declawing, also known as onychectomy is the surgical amputation of all or part of a cat’s third phalanges (toe bones) and attached claws. An analogous procedure on a human being would involve amputating fingers and toes down to the first knuckle. See Position Statement on Declawing Cats, ASPCA, https://www.aspca.org/about-us/aspca-policy-and-position-statements/position-statement-on-declawing-cats (last visited Jan. 15, 2015). An “estimated 25% of owned cats in the United States are declawed.” Lysa P. Posner, Analgesia for Declaw Patients, NAVC CLINICIAN’S BRIEF, May 2010, at 63, 63. The procedure is inhumane and its benefits are regularly outweighed by its complications.

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Complications. One study found fifty percent of cats had one or more medical complications post-surgery, and that nearly twenty per cent developed complications after release. Karen S. Tobias, Feline Onychectomy at a Teaching Institution, 23 VETERINARY SURGERY 274 (1994). Other studies confirmed that “This procedure has a complication rate of about 20%, and owners must accept the possibility of short- or long-term complications.” Gary W. Ellison, Feline Onychectomy Complications, NAVC CLINICIAN’S BRIEF, Apr. 2003, at 29, 29; see AJ Jankowski, et al., Comparison Of Effects Of Elective Tendonectomy Or Onychectomy In Cats, 213 J. AM. VET MED. ASS’N 370 (1998). Reported medical complications include: pain, hemorrhage, laceration of paw pads, reluctance to bear weight on affected limb, neuropraxia (transient motor paralysis), radial nerve damage, chronic pain syndrome, and flexor tendon contracture. Behavioral Problems. Owners are sold on this expensive procedure as a way to protect their furniture and carpets from misbehaving cats. But research suggests that the pain and medical complications from the amputation can often result in even worse behavioral problems. See Seong C. Yeon, et al. Attitudes Of Owners Regarding Tendonectomy And Onychectomy In Cats, 218 J. AM. VET MED. ASS’N 43-47 (2001). Common anti-social behavior includes aggressive biting, and litter box avoidance. Owner Abandonment. Opponents argue that declawing is preferable to cat abandonment. But due to the increased misbehavior associated with the procedure, declawed cats are surrendered to animal shelters at higher rates than intact cats. See G.J. Patronek et al., Risk Factors for Relinquishment of Cats to an Animal Shelter, 209 J. AM. VET MED. ASS’N 582 (1996). Chronic Pain. Finally, mounting evidence suggests that the procedure leaves a number of these animals in discomfort or with life-long chronic pain. See James S. Gaynor, Chronic Pain Syndrome of Feline Onychectomy, NAVC CLINICIAN’S BRIEF, Apr. 2005, at 11, 11. Perhaps this is why “few veterinary schools teach the procedure,” Posner, supra, at 63, and why it has been banned as unnecessary and inhumane in twenty-five countries including Switzerland, Sweden, Austria, Norway, Germany, and the United Kingdom. Likewise, a number of California cities including Los Angeles, Burbank, Santa Monica, Beverly Hills, West Hollywood, Culver City, Berkeley, and San Francisco have banned the procedure as “cruel” and “inhumane.” See Ordinance No. 237-09, Aug. 17, 2009 (S.F. Cal. Bd. of Supervisors 2009). The Solution: To expand the law to prohibit the declawing of domestic cats as well.

(Proposed language underlined, language to be deleted stricken) IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known.

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AUTHOR AND/OR PERMANENT CONTACT: B. Douglas Robbins, WOOD ROBBINS LLP, 1 Post Street, Suite 800, San Francisco, CA 94104, tel 415.247.7900 x204; fax 415.247.7901; drobbins@woodrobbins.com RESPONSIBLE FLOOR DELEGATE: B. Douglas Robbins

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RESOLUTION 04-07-2015 DIGEST Criminal Procedure: Discoverability of Police Audio and Video Recordings Adds Penal Code section 1054.11 to enact procedures regarding the use, retention, disclosure, and discoverability of police audio and video recordings. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution adds Penal Code section 1054.11 to enact procedures regarding the use, retention, disclosure, and discoverability of police audio and video recordings. This resolution should be disapproved because the disclosure rules codified in Penal Code section 1054 require disclosure of police audio and video recordings and the prosecutor has an affirmative duty to disclose both relevant and exculpatory evidence under California law. The disclosure rules in Penal Code section 1054 presently provide that a defendant may informally request from the prosecution any desired materials and information, including police audio and video recordings. Penal Code section 1054.1 specifically provides that the prosecutor “shall disclose” to the defendant “(c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged. … (e) Any exculpatory evidence.” (Pen. Code, §§ 1054.1, subds, (c), and (e).) This resolution is duplicative of the current disclosure requirements and creates a special and unnecessary procedural process for police audio and video recordings that conflicts with the current timing requirements set forth in 1054.1. In the vast majority of cases the prosecution automatically and promptly supplies relevant and materials. If the prosecution does not produce the evidence in fifteen days, the defendant may seek a court order to compel the production. The court may order immediate disclosure of the evidence, commence contempt proceedings, delay or prohibit the testimony of a witness, delay or prohibit the presentation of real evidence, and make any other lawful order. The due process clause of the United States Constitution also requires the prosecutor to disclose exculpatory evidence, including audio and video recordings in criminal cases, known as Brady discovery, without a request from the defendant. Brady discovery requires the prosecutor to disclose substantial material evidence favorable to the accused. If Brady evidence is withheld, the defendant is entitled to a new trial. Brady evidence includes police audio and video recordings. A special and unnecessary procedural process for police audio and video recordings would complicate criminal proceedings and burden the courts because this resolution provides shortened timing requirements for the disclosure of video and audio recordings as opposed to all other evidence. There is no reason that video and audio recordings have a different timing requirement.

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Finally, this resolution also mandates that the prosecutor must present the video or audio recordings in a grand jury proceeding. There are a couple of problems with this. First, there is no other law requiring the prosecutor present to specific evidence to a grand jury. This would take away the prosecutor’s discretion in how he or she conducts these proceedings. Second, this resolution does not require the prosecutor to present the video or audio recordings at a preliminary hearing. Since the purpose of both proceedings is the same, i.e., to determine whether there is sufficient evidence to hold the defendant over for trial on the charges, it does not make sense to require this evidence to be presented in a grand jury proceeding but not at a preliminary hearing. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to add Penal Code section 1054.11 as follows: §1054.11 (a) All law enforcement agencies shall, within one year of the effective date of this 1 section, enact a policy regarding the use, retention, and disclosure to the prosecution of all audio 2 and video recordings depicting interactions between law enforcement officers and civilians, 3 including but not limited to “dash cam” audio and video recorders, on-body audio and video 4 recorders, gun and Taser video, and Mobile Video Audio Recording Systems, that result in the 5 filing of a criminal charge. The policy shall govern audio and video recording equipment owned 6 by or under the control of the law enforcement agency as well as audio and video recording 7 equipment owned by or under the control of law enforcement officers and used in the law 8 enforcement officer’s performance of his or her duties. 9 (b) In all cases in which a criminal case is presented to a prosecutor for filing, all audio 10 and video recordings depicting the interaction between law enforcement officers and the 11 arrestee(s) who are the subject of the criminal charges must be disclosed to the prosecution either 12 at the time the case is presented to the prosecutor for filing or, if not immediately available, 13 within five days after the case is presented to the prosecutor for filing. 14 (c) The audio and video recordings described in this section constitute real evidence and 15 shall be given by the prosecution to the defense in conformity with Chapter 10 of Title 6 of this 16 code. In the case of a felony, the audio and video recordings described in this section shall be 17 given by the prosecution to the defense not more than 5 court days after arraignment on a felony 18 complaint. In the case of a felony presented to a grand jury, all relevant audio and or video 19 recordings must be shown to the grand jury. 20 (d) In any case in which it reasonably appears that audio and/or video recording 21 equipment was present at the scene of the interaction between law enforcement and persons 22 resulting in the filing of a criminal charge, and the law enforcement agency has not given a copy 23 of the audio and or video recording to the prosecution in conformity with this section, both the 24 prosecution and/or defense may serve a subpoena duces tecum upon the law enforcement agency 25 demanding production of the relevant audio and video recordings. The subpoena duces tecum 26 may also demand production of relevant records relating to the specific recording equipment or 27 digital storage space if the law enforcement agency reports that an equipment failure caused the 28 failure to record or loss of the recording. 29

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(Proposed new language underlined; language to be deleted stricken)

PROPONENTS: Ten Members of the California Bar: Mark Harvis, Robin Bernstein-Lev, Thomas Moore, Albert J. Menaster, Albert Camacho, Erika Grant, Greg McCambridge, Dylan Ford, Michael Theberge, Alison Klein. STATEMENT OF REASONS: The Problem: Video evidence is often the very best evidence. Police agencies are starting to utilize audio and video equipment such as “dash cams” or on-body cameras that record the interactions between officers and the citizenry. Despite what would seem to be the obvious evidentiary value to both the prosecution and defense of these recordings, law enforcement, including some prosecutors, are sometimes reluctant to disclose these recordings in a timely manner. This failure brings disrespect upon the criminal justice system and suborns the truth and fact finding function. It is essential that in every case in which there is an audio or video recording, that the recording be available to both the prosecution and the defense in a timely manner. It is likely that the production of video recordings will result in fewer trials and preliminary hearings and thus in money savings to the entire criminal justice system. The Solution: This resolution mandates that law enforcement agencies adopt a policy regarding the use, retention, and disclosure of audio and video recordings in criminal cases. This statute creates a mandatory discovery procedure for audio and video recordings. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Mark Harvis, Los Angeles County Public Defender, 320 W. Temple Ste 590, Los Angeles, CA 90012 213 974-3066, mharvis@pubdef.lacounty.gov RESPONSIBLE FLOOR DELEGATE: Mark Harvis

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RESOLUTION 04-08-2015 DIGEST Criminal: Protocol for Use of Tear Gas by Law Enforcement Agencies Adds Penal Code section 22850 to establish a protocol for the use of tear gas by law enforcement agencies. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution adds Penal Code section 22850 to establish a protocol for the use of tear gas by law enforcement agencies. This resolution should be disapproved because it is vague and ambiguous as to the protocol that it seeks to establish. Although the abuse of power, misuse of tear gas, and disproportionate use of force in response to protests, by police officers should be curbed, this resolution would not stop such misconduct and would instead increase litigation and court costs. Before using tear gas, California’s police officers are already required to complete an extensive, specialized course of instruction approved by the Commission on Peace Officer Standards and Training in the use of tear gas. (Pen. Code, § 22820; https://post.ca.gov/specialized-training-requirements.aspx.) That Commission is overseen by both civilians and law enforcement personnel. In comparison, this resolution vaguely requires that the designated Tear Gas Officer have undergone “appropriate training.” There is no definition or guidance as to what training would be “appropriate.” This resolution attempts to provide a specific procedure for law enforcement officers to follow when using tear gas, but the proposed procedures contain vague requirements that are virtually impossible to comply with or enforce. The proposed procedures require that “every effort shall be taken” before various uses of tear gas are employed. In effect, that requirement would prohibit the use of tear gas in any situation. If “every effort” to avoid the use of tear gas was required, then officers could not use it at all; otherwise they would not have used “every effort.” Even the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”), cited as a basis for this resolution, does not require such an absolute prohibition. Rather, the CPT report cited by the proponent, at page 37, paragraph 79 of that report, recommended that authorities create a “clear directive” governing the use of pepper spray that must include “clear instructions” on when to use pepper spray can be used. This resolution, however, lacks such clear directions, instructions and procedures. Therefore, because of its ambiguity, this resolution would increase litigation over whether an officer used “every effort” and whether the Tear Gas Officer had “appropriate training,” without deterring misconduct.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to add California Penal Code section 22850 to read as follows: §22850 (a) Except as provided below in this section, every person who fires a projectile 1 containing tear gas in a place where other human beings are present shall be punishable by 2 imprisonment for up to twelve months or a fine not exceeding one thousand dollars ($1,000), or 3 both. 4 (b) Peace officers may fire a projectile as described in subsection (a), above, only under 5 the following circumstances. 6 (1) Every law enforcement agency in the state shall designate a senior officer (sergeant or 7 above) as the agency’s Tear Gas Officer. The designated Tear Gas Officer shall be required to 8 have undergone appropriate training in the use of tear gas. The Tear Gas Officer shall have 9 responsibility for the acquisition, storage and dissemination of tear gas within the agency. The 10 Tear Gas Officer shall file a pubic annual report with the agency accounting for the tear gas held 11 in storage by the agency, stating if any tear gas was used during the preceding year and 12 describing the circumstances of such use. 13 (2) No tear gas projectile shall be fired by any peace officer within the agency without an 14 express order from the Tear Gas Officer. In an emergency, the Tear Gas Officer may delegate to 15 other senior officers the authority to authorize the firing of a tear gas projectile; however, such 16 other officers shall make all reasonable efforts to consult with the Tear Gas Officer before taking 17 such action. 18 (c) In the event the firing of a projectile containing tear gas is authorized as above, the 19 following precautions shall be taken: 20 (1) Every effort shall be taken to confine the area where tear gas projectiles are fired to as 21 small an area as necessary to accomplish the purpose of using tear gas; 22 (2) Every effort shall be made to avoid directing tear gas projectiles in the direction of 23 persons who are innocent of any criminal conduct or intent and who are not posing any threat of 24 injury to persons or property; 25 (3) Every effort shall be used to avoid firing tear gas projectiles in residential 26 neighborhoods; 27 (4) Every effort shall be made to avoid firing tear gas projectiles in the vicinity of places 28 where children may be congregated; and 29 (5) The agency shall assure that medical personnel are present whenever tear gas 30 projectiles are fired in order to provide assistance to person injured by tear case, as necessary. 31 (d) Following the firing of any tear gas projectiles by officers of the agency in which the 32 Tear Gas Officer is employed, the Tear Gas Officer shall file a public report with the agency 33 describing a) the reasons for the use of tear gas, b) how many projectiles were fired by officers of 34 the agency, and c) whether the tear gas projectiles were fired in accordance with subdivision (c), 35 above, and if not why not. 36 (e) Tear gas projectiles may be fired by law enforcement personnel for training purposes 37 in a manner that does not expose non-law enforcement individuals to tear gas. 38

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(f) Any person exposed to tear gas by a peace officer in violation of this section shall 39 have a civil action for damages for his or her injuries. 40

(Proposed new language underlined; language to be deleted stricken)

PROPONENT: The Bar Association of San Francisco STATEMENT OF REASONS The Problem: The recent events in Ferguson, Missouri, have demonstrated that the use of tear gas to control crowds is both dangerous to people, especially peaceful persons in such a crowd, and can be counterproductive by making the crowd hostile to the law enforcement agency or agencies that supposedly are ensuring public safety. In short, tear gas is a blunt instrument of crowd control that should be used, if at all, as a last resort. It should not be considered a substitute for more appropriate means of crowd control that are less likely to create hostility toward law enforcement. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has expressed its concerns over the use of such gases in law enforcement. The CPT considers that:“… [P]epper spray [tear gas] is a potentially dangerous substance and should not be used in confined spaces. Even when used in open spaces the CPT has serious reservations; if exceptionally it needs to be used, there should be clearly defined safeguards in place. For example, persons exposed to pepper spray should be granted immediate access to a medical doctor and be offered an antidote. Pepper spray should never be deployed against a prisoner who has already been brought under control.” (CPT/Inf (2009) 25, paragraph 79). http://worldwithouttorture.org/2012/05/31/tear-gas-is-it-a-violation-of-human-rights. The Solution: This resolution would provide safeguards against the indiscriminate use of tear gas by law enforcement personnel in California IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: John T. Hansen, 582 Market Street, Suited 1903, San Francisco, California 94105. Telephone: 415-444-6684 (o); 510-910-1392 (m); jhansenlaw101@gmail.com RESPONSIBLE FLOOR DELEGATE: John T.Hansen

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RESOLUTION 04-09-2015 DIGEST Minor Traffic Offenses: Dismissal Following Sentence to County Jail Amends Vehicle Code section 41500, to add incarceration in county jail pursuant to Penal Code section 1170, subdivision (h), realignment to the basis for dismissal of infraction cases. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: Similar to Resolution 02-06-2013, which was approved in principle. Reasons: This resolution amends Vehicle Code section 41500, to add incarceration in county jail pursuant to Penal Code section 1170, subdivision (h), realignment to the basis for dismissal of infraction cases. This resolution should be approved in principle because it harmonizes the law and follows the intent of the realignment legislation, by applying the same standard to incarceration in county jail for what formerly would have been a sentence to prison, so that all inmates are treated equally. There is now no obvious reason to draw a distinction between persons incarcerated in state prison and those who happen to be in county jail instead by virtue of realignment, as opposed to misdemeanor conviction. At least one published post-realignment case has declined to consider such a dismissal where a defendant was committed to county jail, even if it were under section 1170, subdivision (h), specifically because the statute refers only to the Department of Corrections and Rehabilitation. (People v. Lopez (2013) 218 Cal.App.4th Supp. 6.) The Lopez court articulated a rational basis for the then-existing distinction between commitment to the Department of Corrections and Rehabilitation and commitment to county jail as promotion of rehabilitation of prison inmates who then had longer sentences than county jail inmates. It noted that the purpose of section 41500 is to allow prisoners to leave prison with a clean record, and that the rehabilitative process is aided by eliminating interruptions due to arrest and prosecution for non-felony traffic violations. It held the section was intended to provide relief to inmates who faced longer periods of confinement but have access to rehabilitation programs because they face more difficulty reintegrating into society after detainment but that county jails do not have vocational skills programs and their inmates have no further obligations after release, while a prison inmate would have a period of parole. (People v Lopez, supra, 218 Cal.App.4th at 11.) Logic dictates that a sentence under realignment is, in fact, a prison sentence, even though it is served in county jail, hence all of the same policy considerations should apply. Similar to Assembly Bill No. 1156 (Brown), which is currently before the Senate Appropriations Committee.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Vehicle Code section 41500 to read as follows: §41500 (a) No person shall be subject to prosecution for any nonfelony offense arising out of the 1 operation of a motor vehicle or violation of this code as a pedestrian which is pending against 2 him at the time of his commitment to the custody of the Director of Corrections or the 3 Department of the Youth Authority, or to county jail pursuant to subdivision (h) of Section 1170 4 of the Penal Code. 5 (b) Notwithstanding any other provisions of law to the contrary, no driver's license shall 6 be suspended or revoked, nor shall the issuance or renewal of a license be refused as a result of a 7 pending nonfelony offense occurring prior to the time a person was committed to the custody of 8 the Director of Corrections or the Department of the Youth Authority, or to County Jail pursuant 9 to subdivision (h) of Section 1170 of the Penal Code, or as a result of a notice received by the 10 department pursuant to subdivision (a) of Section 40509 when the offense which gave rise to the 11 notice occurred prior to the time a person was committed to the custody of the Director of 12 Corrections or the Department of the Youth Authority or to County Jail pursuant to subdivision 13 (h) of Section 1170 of the Penal Code. 14 (c) The department shall remove from its records any notice received by it pursuant to 15 subdivision (a) of Section 40509 upon receipt of satisfactory evidence that a person was 16 committed to the custody of the Director of Corrections or the Department of the Youth 17 Authority, or to County Jail pursuant to subdivision (h) of Section 1170 of the Penal Code after 18 the offense which gave rise to the notice occurred. 19 (d) The provisions of this section shall not apply to any nonfelony offense wherein the 20 department is required by this code to immediately revoke or suspend the privilege of any person 21 to drive a motor vehicle upon receipt of a duly certified abstract of the record of any court 22 showing that the person has been convicted of that nonfelony offense. 23 (e) The provisions of subdivisions (a), (b), and (c) do not apply to any offense committed 24 by a person while he is temporarily released from custody pursuant to law or while he is on 25 parole, post-release community supervision, or any other form of supervised release. 26 (f) The provisions of subdivisions (a), (b), and (c) do not apply if the pending offense is a 27 violation of Section 23103, 23152, or 23153. 28

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Los Angeles County Bar Association STATEMENT OF REASONS The Problem: Section 41500 was designed to relieve court congestion (and decrease public expense) by mandating dismissal of pending minor, non-violent, victimless misdemeanor offenses, when the defendant is sentenced to prison as a result of a felony conviction. For example, if a defendant is sentenced to five years in prison for robbery, §41500 requires that the

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court dismiss any unresolved misdemeanor tickets faced by that defendant (ie driving on a suspended license). The problem is that recent changes in sentencing law now require some defendants to serve their prison sentences in county jail. For example, a defendant sentenced to five years in “prison” for selling cocaine will actually serve his time in county jail. Under the old language of §41500, these defendants are not eligible to have their pending minor violations dismissed because they were not committed to the custody of the “Director of Corrections” – even though they are serving equally long sentences for less serious offenses. The Solution: This resolution would fix the problem by explicitly including the new “prison to county-jail” sentencing scheme in the category of cases affected by §41500. The current, unintended exception to the general dismissal rule of § 41500 undercuts the purpose of the rule itself (dismissal of minor offenses where the defendant is already serving significant custody time). This is particularly true given the reality that defendants sentenced to “actual” prison (as opposed to county jail prison) have usually been convicted of more serious offenses (ie robbery, murder etc.) than those sentenced to serve their prison time in county jail (ie drug-dealing, car-theft etc.). Thus, under the current statute, those convicted of “worse” offenses get the benefit of dismissal of minor, non-violent offenses, while those convicted of less serious felonies do not. The proposed language change would fix the problem by applying the dismissal rule to both classes of defendants – effectively clarifying that, regardless of whether a lengthy felony custody sentence is served in state prison or county jail, the purpose of the statute is to clear unnecessary and minor prosecutions off the court’s docket and off the public’s checkbook. IMPACT STATEMENT This resolution does not affect any other statute, case law or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Nick Stewart-Oaten RESPONSIBLE FLOOR DELEGATE: Nick Stewart-Oaten

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RESOLUTION 04-10-2015 DIGEST Vehicle Code: Bicycle-Riding While Using a Wireless Telephone Amends Vehicle Code section 23123 to add bicycle riders to the prohibition of using wireless telephones without hands-free listening and talking devices while riding. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Vehicle Code section 23123 to add bicycle riders to the prohibition of using wireless telephones without hands-free listening and talking devices while riding. This resolution should be disapproved because bicyclists are already required to follow the same rules of the road as motor vehicles. Section 23123 currently prohibits the driving of a motor vehicle while using a mobile phone without a hands-free device or function. As the proponent of this resolution notes, section 21200 states, "A person riding a bicycle or operating a pedicab upon a highway has all the rights and is subject to all the provisions applicable to the driver of a vehicle . . . except those provisions which by their very nature can have no application." While a highway is defined as “a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel” (Veh. Code, § 360), when additional statutory provisions are considered section 21200 has been found to apply equally to bicyclists riding on any part of the public roadway, including the sidewalk. (76 Ops. Cal. Atty. Gen. 214, 216-217.) The proponent contends section 21200 is vague and ambiguous because it provides a noninclusive list of offenses that does not contain the use of a mobile phone. The broad interpretation of section 21200, however, clearly encompasses the use of wireless telephones by bicyclists. The courts have found "the clear legislative intent expressed in section 21200 was to make bicycles subject to the same rules of the road as motor vehicles. To rule otherwise would inevitably frustrate the manifest purposes of the legislation as a whole and lead to absurd results." (People v. Fong (1993) 17 Cal.App.4th Supp. 1, 3; see also People v. McKay (2002) 27 Cal.4th 601, 625.) Adding bicyclists to section 23123 but to no other section, and not adding pedicab drivers, would create the very ambiguity with which the proponent is concerned.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored amend the California Vehicle Code section 23123, to read as follows: §23123 (a) A person shall not drive a motor vehicle or ride a bicycle while using a wireless 1 telephone unless that telephone is specifically designed and configured to allow hands-free 2 listening and talking, and is used in that manner while driving or riding. 3 (b) A violation of this section is an infraction punishable by a base fine of twenty dollars 4 ($20) for a first offense and fifty dollars ($50) for each subsequent offense. 5 (c) This section does not apply to a person using a wireless telephone for emergency 6 purposes, including, but not limited to, an emergency call to a law enforcement agency, health 7 care provider, fire department, or other emergency services agency or entity. 8 (d) This section does not apply to an emergency services professional using a wireless 9 telephone while operating an authorized emergency vehicle, as defined in Section 165, in the 10 course and scope of his or her duties. 11 (e) This section does not apply to a person driving a school bus or transit vehicle that is 12 subject to Section 23125. 13 (f) This section does not apply to a person while driving a motor vehicle on private 14 property. 15

(Proposed new language underlined; language to be deleted stricken) PROPONENT: San Diego County Bar Association STATEMENT OF REASONS: The Problem: Bicycles, by their nature, are unsteady, yet can achieve speeds similar to motorized vehicles. Even at slower speeds, the best bicycle riders can easily lose their balance and fall. Couple this with the unpredictably dynamic nature of traffic and pedestrians and the possibility of injury increases exponentially. To minimize the chance of injury by maximizing a bicycle rider’s control, the rider should use both hands at all times to control balance, direction, and speed. Many bicycle operators believe they are immune from many traffic laws because they are not operating a “motorized” vehicle. Once such law, section 23123, governs the use of wireless telephones while operating a motor vehicle. California Vehicle Code section 21200 applies applicable motor vehicle laws to bicyclists and pedicab operators but, it is vague and ambiguous. The Solution: California Vehicle Code section 21200 defines the rights and duties of bicycle riders and pedicab operators by stating in relevant part, “[the rider] has all of the rights and is subject to all of the provisions applicable to the driver of a vehicle by this division, including but not limited to, provisions conserving driving under the influence of alcoholic beverages or drugs, and…(four listed divisions of which none apply to wireless telephone use). This resolution will expressly prohibit bicycle riders from using a wireless telephone while riding a bicycle thereby removing any ambiguity or vagueness as to the rider’s duties.

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IMPACT STATEMENT This resolution does not affect any other law, statute, or rule. CURRENT OR PRIOR RELATED LEGISLATION: Not known. AUTHOR AND/OR PERMANENT CONTACT: Robert H. Lynn, The Law Offices of Robert H. Lynn, 2534 State St, Suite #308 San Diego, CA 92101, (619) 233-9464. RESPONSIBLE FLOOR DELEGATE: Robert H. Lynn

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RESOLUTION 04-11-2015 DIGEST Juvenile Law: Jurisdiction for Counties to Grant Honorable Discharge Amends Welfare and Institutions Code sections 1772 and 1179 to authorize courts to grant honorable discharges to juvenile offenders with good records on supervised probation. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Welfare and Institutions Code sections 1772 and 1179 to authorize courts to grant honorable discharges to juvenile offenders with good records on supervised probation. This resolution should be approved in principle because it reflects the recent change in jurisdiction over youths discharged from California’s Department of Corrections and Rehabilitation’s Division of Juvenile Facilities from the Youth Authority Board to local counties, per Welfare and Institutions Code sections 1766.01 and 1767.36. (See Assem. Bill No. 1628 (2009-2010 Reg. Sess.).) The above legislation eliminated the power of revocationor suspension of parole as a state duty exercised by the Juvenile Parole Board and instead requirescounty courts to establish the conditions of the ward’s supervision onparole. This resolution does not substantively change the law, but instead makes the honorable discharge status available to juvenile offenders with good records on supervised probation. Honorable discharge promotes rehabilitation of youths with criminal records. If youths do not have access to honorable discharge, their criminal record stays with them and they may be disqualified from employment opportunities and occupational licensing requirements. The above-mentioned amendments to the Welfare and Institutions Code intended to change the responsibility of supervising youths on parole from the State to local counties. It did not intend to deny youth access to honorable discharge. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to amend Welfare and Institutions Code sections 1772 and 1179 to read as follows: §1772 (a) Subject to subdivision (b), every person honorably discharged from control by the 1 Youth Authority Board of Parole Hearings or by a juvenile court bench officer who has not, 2 during the period of control by the authorityBoard of Parole Hearings or the county probation 3 department, been placed by the authorityBoard of Parole Hearings or county probation 4 department in a state prison shall thereafter be released from all penalties and disabilities 5 resulting from the offense or crime for which he or she was committed, and every person 6 discharged may petition the court which committed him or her, and the court may upon that 7

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petition set aside the verdict of guilty and dismiss the accusation or information against the 8 petitioner who shall thereafter be released from all penalties and disabilities resulting from the 9 offense or crime for which he or she was committed, including, but not limited to, any 10 disqualification for any employment or occupational license, or both, created by any other 11 provision of law. 12 (b) Notwithstanding subdivision (a): 13 (1) A person described by subdivision (a) shall not be eligible for appointment as a peace 14 officer employed by any public agency if his or her appointment would otherwise be prohibited 15 by Section 1029 of the Government Code. However, that person may be appointed and employed 16 as a peace officer by the Department of the Youth Authority Division of Juvenile Facilities if (A) 17 at least five years have passed since his or her honorable discharge, and the person has had no 18 misdemeanor or felony convictions except for traffic misdemeanors since he or she was 19 honorably discharged by the Youth Authority Board of Parole Hearings or by a juvenile court 20 bench officer, or (B) the person was employed as a peace officer by the Department of the Youth 21 Authority Division of Juvenile Facilities on or before January 1, 1983. No person who is under 22 the jurisdiction of the Department of the Youth Authority Division of Juvenile Facilities shall be 23 admitted to an examination for a peace officer position with the department Division of Juvenile 24 Facilities unless and until the person has been honorably discharged from the jurisdiction of the 25 Youth Authority Board of Parole Hearings or by a juvenile court bench officer. 26 (2) A person described by subdivision (a) is subject to Chapter 2 (commencing with 27 Section 29800) and Chapter 3 (commencing with Section 29900) of Division 9 of Title 4 of Part 28 6 of the Penal Code. 29 (3) The conviction of a person described by subdivision (a) for an offense listed in 30 subdivision (b) of Section 707 is admissible in a subsequent criminal, juvenile, or civil 31 proceeding if otherwise admissible, if all the following are true: 32 (A) The person was 16 years of age or older at the time he or she committed the offense. 33 (B) The person was found unfit to be dealt with under the juvenile court law pursuant to 34 Section 707 because he or she was alleged to have committed an offense listed in subdivision (b) 35 of Section 707. 36 (C) The person was tried as an adult and convicted of an offense listed in subdivision (b) 37 of Section 707. 38 (D) The person was committed to the Department of the Youth Authority Division of 39 Juvenile Facilities for the offense referred to in subparagraph (C). 40 (4) The conviction of a person described by subdivision (a) may be used to enhance the 41 punishment for a subsequent offense. 42 (5) The conviction of a person who is 18 years of age or older at the time he or she 43 committed the offense is admissible in a subsequent civil, criminal, or juvenile proceeding, if 44 otherwise admissible pursuant to law. 45 (c) Every person discharged from control by the Youth Authority Board of Parole 46 Hearings or by a juvenile court bench officer shall be informed of the provisions of this section 47 in writing at the time of discharge. 48 (d) "Honorably discharged" as used in this section means and includes every person 49 whose discharge is based upon a good record on parole or probation supervision. 50 51 §1179 52

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(a) All persons honorably discharged from control of the Youth Authority Board of 53 Parole Hearings or by a juvenile court bench officer shall thereafter be released from all penalties 54 or disabilities resulting from the offenses for which they were committed, including, but not 55 limited to, any disqualification for any employment or occupational license, or both, created by 56 any other provision of law. However, that a person shall not be eligible for appointment as a 57 peace officer employed by any public agency if his or her appointment would otherwise be 58 prohibited by Section 1029 of the Government Code. 59 (b) Notwithstanding the provisions of subdivision (a), that person may be appointed and 60 employed as a peace officer by the Department of the Youth Authority Division of Juvenile 61 Facilities if (1) at least five years have passed since his or her honorable discharge, and the 62 person has had no misdemeanor or felony convictions except for traffic misdemeanors since he 63 or she was honorably discharged by the bBoard of Parole Hearings or by a juvenile court bench 64 officer, or (2) the person was employed as a peace officer by the department Division of Juvenile 65 Facilities on or before January 1, 1983. No person who is under the jurisdiction of the 66 department Division of Juvenile Facilities shall be admitted to an examination for a peace officer 67 position with the department Division of Juvenile Facilities unless and until the person has been 68 honorably discharged from the jurisdiction of the department Division of Juvenile Facilities by 69 the Youth Authority Board of Parole Hearings or by a juvenile court bench officer. 70 (c) Upon the final discharge or dismissal of any such person, the Department of the 71 Youth Authority shall immediately certify the discharge or dismissal in writing, and shall 72 transmit the certificate to the court by which the person was committed. The court shall 73 thereupon dismiss the accusation and the action pending against that person. 74 (Proposed new language underlined; language to be deleted stricken.) PROPONENT: Los Angeles County Bar Association STATEMENT OF REASONS The Problem: Pursuant to AB 1628 in 2011, youth are now supervised locally under county supervision after discharge from California’s Department of Corrections and Rehabilitation’s Division of Juvenile Facilities and do not have the ability to earn an honorable discharge pursuant to Welfare and Institutions Code §1772 and §1179. This denies locally supervised youth a relief previously available to youth discharged from state control by the Youth Authority Board and included every person whose discharge was based upon a good record on parole. Now youth released locally to county supervision with a good record on probation cannot petition a court to set aside the accusation or information against him or her and remain disqualified from employment and occupational licensing requirements. The inability to earn an honorable discharge prevents rehabilitated youth from obtaining the necessary employment they need to earn a living and a valuable anti-recidivism tool, honorable discharge, has been removed as an incentive to keep youth crime free while on probation. Without honorable discharge status, the record of even rehabilitated youth will follow them as they try to seek adequate employment. The Solution: Amend Welfare and Institutions Code §1772 and §1179 to allow county juvenile court bench officers the authority to make a finding of honorable discharge for a person upon a good record on probation supervision. This resolution simply updates and recaptures the

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honorable discharge status to the same intended recipients as existed before under the old system and allows youth supervised locally under county supervision to have the same rights and relief previously available to state supervised youth discharged on Youth Authority Parole. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. AUTHOR AND PERMANENT CONTACT: Pamela Villanueva, 1 Regent Street, Suite 304, Inglewood, CA 90045, 310/419-6738, fax 310/677-8388, pvillanueva@pubdef.lacounty.gov RESPONSIBLE FLOOR DELEGATE: Pamela Villanueva

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RESOLUTION 04-12-2015 DIGEST Criminal: Recall of Felony County Jail Sentences, Recall Recommendation by District Attorney Amends Penal Code section 1170 to allow courts to recall prison sentences served in county jail and to allow district attorneys to recommend recall of any felony sentences. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: Similar to Resolution 09-01-2013, which was approved in principle. Reasons: This resolution amends Penal Code section 1170 to allow courts to recall prison sentences served in county jail and to allow district attorneys to recommend recall of any felony sentences. This resolution should be approved in principle because it includes district attorneys among the relevant stakeholders who can recommend recall when a different sentence is appropriate, and eliminates an unintended distinction between inmates serving felony sentences in county jail. Penal Code section 1170 is designed to permit the recall of all felony sentences that involve imprisonment, in appropriate circumstances. The section denotes felony imprisonment with the phrase “committed to the custody of the secretary.” However, this phrase no longer describes all felony inmates, in light of the enactment of the Public Safety Realignment Act in 2011, which provides for imprisonment in county jail for certain types of felonies. There is no indication that the Legislature intended to preclude the recall of felony sentences being served in county jails. This resolution amends section 1170 in line with its original purpose of permitting recall of all felony sentences of imprisonment. If the resolution is approved in principle, it should be amended to eliminate the phrase “of Section 1170,” since statutes typically omit the section number when referring to another subdivision of the same statute. Corresponding amendments will also need to be made to subdivision (e) of the statute, adding “, the District Attorney of the county of sentence, or the official in charge of the facility where the defendant has been imprisoned pursuant to subdivision (h)” after each mention of the secretary or the Board of Parole Hearings. This resolution is similar to an active bill, AB 1156 (Brown). TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to amend Penal Code section 1170 to read as follows: §1170 (a) (1) The Legislature finds and declares that the purpose of imprisonment for crime is 1 punishment. This purpose is best served by terms proportionate to the seriousness of the offense 2

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with provision for uniformity in the sentences of offenders committing the same offense under 3 similar circumstances. The Legislature further finds and declares that the elimination of disparity 4 and the provision of uniformity of sentences can best be achieved by determinate sentences fixed 5 by statute in proportion to the seriousness of the offense as determined by the Legislature to be 6 imposed by the court with specified discretion. 7 (2) Notwithstanding paragraph (1), the Legislature further finds and declares that 8 programs should be available for inmates, including, but not limited to, educational programs, 9 that are designed to prepare nonviolent felony offenders for successful reentry into the 10 community. The Legislature encourages the development of policies and programs designed to 11 educate and rehabilitate nonviolent felony offenders. In implementing this section, the 12 Department of Corrections and Rehabilitation is encouraged to give priority enrollment in 13 programs to promote successful return to the community to an inmate with a short remaining 14 term of commitment and a release date that would allow him or her adequate time to complete 15 the program. 16 (3) In any case in which the punishment prescribed by statute for a person convicted of a 17 public offense is a term of imprisonment in the state prison of any specification of three time 18 periods, the court shall sentence the defendant to one of the terms of imprisonment specified 19 unless the convicted person is given any other disposition provided by law, including a fine, jail, 20 probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to 21 subdivision (b) of Section 1168 because he or she had committed his or her crime prior to July 1, 22 1977. In sentencing the convicted person, the court shall apply the sentencing rules of the 23 Judicial Council. The court, unless it determines that there are circumstances in mitigation of the 24 punishment prescribed, shall also impose any other term that it is required by law to impose as an 25 additional term. Nothing in this article shall affect any provision of law that imposes the death 26 penalty, that authorizes or restricts the granting of probation or suspending the execution or 27 imposition of sentence, or expressly provides for imprisonment in the state prison for life, except 28 as provided in paragraph (2) of subdivision (d). In any case in which the amount of 29 preimprisonment credit under Section 2900.5 or any other provision of law is equal to or exceeds 30 any sentence imposed pursuant to this chapter, the entire sentence shall be deemed to have been 31 served and the defendant shall not be actually delivered to the custody of the secretary. The court 32 shall advise the defendant that he or she shall serve a period of parole and order the defendant to 33 report to the parole office closest to the defendant's last legal residence, unless the in-custody 34 credits equal the total sentence, including both confinement time and the period of parole. The 35 sentence shall be deemed a separate prior prison term under Section 667.5, and a copy of the 36 judgment and other necessary documentation shall be forwarded to the secretary. 37 (b) When a judgment of imprisonment is to be imposed and the statute specifies three 38 possible terms, the choice of the appropriate term shall rest within the sound discretion of the 39 court. At least four days prior to the time set for imposition of judgment, either party or the 40 victim, or the family of the victim if the victim is deceased, may submit a statement in 41 aggravation or mitigation. In determining the appropriate term, the court may consider the record 42 in the case, the probation officer's report, other reports, including reports received pursuant to 43 Section 1203.03, and statements in aggravation or mitigation submitted by the prosecution, the 44 defendant, or the victim, or the family of the victim if the victim is deceased, and any further 45 evidence introduced at the sentencing hearing. The court shall select the term which, in the 46 court's discretion, best serves the interests of justice. The court shall set forth on the record the 47 reasons for imposing the term selected and the court may not impose an upper term by using the 48

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fact of any enhancement upon which sentence is imposed under any provision of law. A term of 49 imprisonment shall not be specified if imposition of sentence is suspended. 50 (c) The court shall state the reasons for its sentence choice on the record at the time of 51 sentencing. The court shall also inform the defendant that as part of the sentence after expiration 52 of the term he or she may be on parole for a period as provided in Section 3000. 53 (d) (1) When a defendant subject to this section or subdivision (b) of Section 1168 has 54 been sentenced to be imprisoned in the state prison and has been committed to the custody of the 55 secretary, or has been sentenced to imprisonment pursuant to subdivision (h) of Section 1170, the 56 court may, within 120 days of the date of commitment to the custody of the secretary or sentence 57 to imprisonment pursuant to subdivision (h) of Section 1170 on its own motion, or at any time 58 upon the recommendation of the secretary or the Board of Parole Hearings, the District Attorney 59 of the county of sentence, or the official in charge of the facility where the defendant has been 60 imprisoned pursuant to subdivision (h) of Section 1170, recall the sentence and commitment 61 previously ordered and resentence the defendant in the same manner as if he or she had not 62 previously been sentenced, provided the new sentence, if any, is no greater than the initial 63 sentence. The court resentencing under this subdivision shall apply the sentencing rules of the 64 Judicial Council so as to eliminate disparity of sentences and to promote uniformity of 65 sentencing. Credit shall be given for time served. 66 (2) (A) (i) When a defendant who was under 18 years of age at the time of the 67 commission of the offense for which the defendant was sentenced to imprisonment for life 68 without the possibility of parole has served at least 15 years of that sentence, the defendant may 69 submit to the sentencing court a petition for recall and resentencing. 70 (ii) Notwithstanding clause (i), this paragraph shall not apply to defendants sentenced to 71 life without parole for an offense where the defendant tortured, as described in Section 206, his 72 or her victim or the victim was a public safety official, including any law enforcement personnel 73 mentioned in Chapter 4.5 (commencing with Section 830) of Title 3, or any firefighter as 74 described in Section 245.1, as well as any other officer in any segment of law enforcement who 75 is employed by the federal government, the state, or any of its political subdivisions. 76 (B) The defendant shall file the original petition with the sentencing court. A copy of the 77 petition shall be served on the agency that prosecuted the case. The petition shall include the 78 defendant's statement that he or she was under 18 years of age at the time of the crime and was 79 sentenced to life in prison without the possibility of parole, the defendant's statement describing 80 his or her remorse and work towards rehabilitation, and the defendant's statement that one of the 81 following is true: 82 (i) The defendant was convicted pursuant to felony murder or aiding and abetting murder 83 provisions of law. 84 (ii) The defendant does not have juvenile felony adjudications for assault or other felony 85 crimes with a significant potential for personal harm to victims prior to the offense for which the 86 sentence is being considered for recall. 87 (iii) The defendant committed the offense with at least one adult codefendant. 88 (iv) The defendant has performed acts that tend to indicate rehabilitation or the potential 89 for rehabilitation, including, but not limited to, availing himself or herself of rehabilitative, 90 educational, or vocational programs, if those programs have been available at his or her 91 classification level and facility, using self-study for self-improvement, or showing evidence of 92 remorse. 93

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(C) If any of the information required in subparagraph (B) is missing from the petition, or 94 if proof of service on the prosecuting agency is not provided, the court shall return the petition to 95 the defendant and advise the defendant that the matter cannot be considered without the missing 96 information. 97 (D) A reply to the petition, if any, shall be filed with the court within 60 days of the date 98 on which the prosecuting agency was served with the petition, unless a continuance is granted for 99 good cause. 100 (E) If the court finds by a preponderance of the evidence that the statements in the 101 petition are true, the court shall hold a hearing to consider whether to recall the sentence and 102 commitment previously ordered and to resentence the defendant in the same manner as if the 103 defendant had not previously been sentenced, provided that the new sentence, if any, is not 104 greater than the initial sentence. Victims, or victim family members if the victim is deceased, 105 shall retain the rights to participate in the hearing. 106 (F) The factors that the court may consider when determining whether to recall and 107 resentence include, but are not limited to, the following: 108 (i) The defendant was convicted pursuant to felony murder or aiding and abetting murder 109 provisions of law. 110 (ii) The defendant does not have juvenile felony adjudications for assault or other felony 111 crimes with a significant potential for personal harm to victims prior to the offense for which the 112 sentence is being considered for recall. 113 (iii) The defendant committed the offense with at least one adult codefendant. 114 (iv) Prior to the offense for which the sentence is being considered for recall, the 115 defendant had insufficient adult support or supervision and had suffered from psychological or 116 physical trauma, or significant stress. 117 (v) The defendant suffers from cognitive limitations due to mental illness, developmental 118 disabilities, or other factors that did not constitute a defense, but influenced the defendant's 119 involvement in the offense. 120 (vi) The defendant has performed acts that tend to indicate rehabilitation or the potential 121 for rehabilitation, including, but not limited to, availing himself or herself of rehabilitative, 122 educational, or vocational programs, if those programs have been available at his or her 123 classification level and facility, using self-study for self-improvement, or showing evidence of 124 remorse. 125 (vii) The defendant has maintained family ties or connections with others through letter 126 writing, calls, or visits, or has eliminated contact with individuals outside of prison who are 127 currently involved with crime. 128 (viii) The defendant has had no disciplinary actions for violent activities in the last five 129 years in which the defendant was determined to be the aggressor. 130 (G) The court shall have the discretion to recall the sentence and commitment previously 131 ordered and to resentence the defendant in the same manner as if the defendant had not 132 previously been sentenced, provided that the new sentence, if any, is not greater than the initial 133 sentence. The discretion of the court shall be exercised in consideration of the criteria in 134 subparagraph (B). Victims, or victim family members if the victim is deceased, shall be notified 135 of the resentencing hearing and shall retain their rights to participate in the hearing. 136 (H) If the sentence is not recalled, the defendant may submit another petition for recall 137 and resentencing to the sentencing court when the defendant has been committed to the custody 138 of the department for at least 20 years. If recall and resentencing is not granted under that 139

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petition, the defendant may file another petition after having served 24 years. The final petition 140 may be submitted, and the response to that petition shall be determined, during the 25th year of 141 the defendant's sentence. 142 (I) In addition to the criteria in subparagraph (F), the court may consider any other 143 criteria that the court deems relevant to its decision, so long as the court identifies them on the 144 record, provides a statement of reasons for adopting them, and states why the defendant does or 145 does not satisfy the criteria. 146 (J) This subdivision shall have retroactive application. 147 (e) (1) Notwithstanding any other law and consistent with paragraph (1) of subdivision 148 (a), if the secretary or the Board of Parole Hearings or both determine that a prisoner satisfies the 149 criteria set forth in paragraph (2), the secretary or the board may recommend to the court that the 150 prisoner's sentence be recalled. 151 (2) The court shall have the discretion to resentence or recall if the court finds that the 152 facts described in subparagraphs (A) and (B) or subparagraphs (B) and (C) exist: 153 (A) The prisoner is terminally ill with an incurable condition caused by an illness or 154 disease that would produce death within six months, as determined by a physician employed by 155 the department. 156 (B) The conditions under which the prisoner would be released or receive treatment do 157 not pose a threat to public safety. 158 (C) The prisoner is permanently medically incapacitated with a medical condition that 159 renders him or her permanently unable to perform activities of basic daily living, and results in 160 the prisoner requiring 24-hour total care, including, but not limited to, coma, persistent 161 vegetative state, brain death, ventilator-dependency, loss of control of muscular or neurological 162 function, and that incapacitation did not exist at the time of the original sentencing. 163 The Board of Parole Hearings shall make findings pursuant to this subdivision before making a 164 recommendation for resentence or recall to the court. This subdivision does not apply to a 165 prisoner sentenced to death or a term of life without the possibility of parole. 166 (3) Within 10 days of receipt of a positive recommendation by the secretary or the board, 167 the court shall hold a hearing to consider whether the prisoner's sentence should be recalled. 168 (4) Any physician employed by the department who determines that a prisoner has six 169 months or less to live shall notify the chief medical officer of the prognosis. If the chief medical 170 officer concurs with the prognosis, he or she shall notify the warden. Within 48 hours of 171 receiving notification, the warden or the warden's representative shall notify the prisoner of the 172 recall and resentencing procedures, and shall arrange for the prisoner to designate a family 173 member or other outside agent to be notified as to the prisoner's medical condition and 174 prognosis, and as to the recall and resentencing procedures. If the inmate is deemed mentally 175 unfit, the warden or the warden's representative shall contact the inmate's emergency contact and 176 provide the information described in paragraph (2). 177 (5) The warden or the warden's representative shall provide the prisoner and his or her 178 family member, agent, or emergency contact, as described in paragraph (4), updated information 179 throughout the recall and resentencing process with regard to the prisoner's medical condition 180 and the status of the prisoner's recall and resentencing proceedings. 181 (6) Notwithstanding any other provisions of this section, the prisoner or his or her family 182 member or designee may independently request consideration for recall and resentencing by 183 contacting the chief medical officer at the prison or the secretary. Upon receipt of the request, the 184 chief medical officer and the warden or the warden's representative shall follow the procedures 185

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described in paragraph (4). If the secretary determines that the prisoner satisfies the criteria set 186 forth in paragraph (2), the secretary or board may recommend to the court that the prisoner's 187 sentence be recalled. The secretary shall submit a recommendation for release within 30 days in 188 the case of inmates sentenced to determinate terms and, in the case of inmates sentenced to 189 indeterminate terms, the secretary shall make a recommendation to the Board of Parole Hearings 190 with respect to the inmates who have applied under this section. The board shall consider this 191 information and make an independent judgment pursuant to paragraph (2) and make findings 192 related thereto before rejecting the request or making a recommendation to the court. This action 193 shall be taken at the next lawfully noticed board meeting. 194 (7) Any recommendation for recall submitted to the court by the secretary or the Board of 195 Parole Hearings shall include one or more medical evaluations, a postrelease plan, and findings 196 pursuant to paragraph (2). 197 (8) If possible, the matter shall be heard before the same judge of the court who 198 sentenced the prisoner. 199 (9) If the court grants the recall and resentencing application, the prisoner shall be 200 released by the department within 48 hours of receipt of the court's order, unless a longer time 201 period is agreed to by the inmate. At the time of release, the warden or the warden's 202 representative shall ensure that the prisoner has each of the following in his or her possession: a 203 discharge medical summary, full medical records, state identification, parole medications, and all 204 property belonging to the prisoner. After discharge, any additional records shall be sent to the 205 prisoner's forwarding address. 206 (10) The secretary shall issue a directive to medical and correctional staff employed by 207 the department that details the guidelines and procedures for initiating a recall and resentencing 208 procedure. The directive shall clearly state that any prisoner who is given a prognosis of six 209 months or less to live is eligible for recall and resentencing consideration, and that recall and 210 resentencing procedures shall be initiated upon that prognosis. 211 (f) Notwithstanding any other provision of this section, for purposes of paragraph (3) of 212 subdivision (h), any allegation that a defendant is eligible for state prison due to a prior or current 213 conviction, sentence enhancement, or because he or she is required to register as a sex offender 214 shall not be subject to dismissal pursuant to Section 1385. 215 (g) A sentence to state prison for a determinate term for which only one term is specified, 216 is a sentence to state prison under this section. 217 (h) (1) Except as provided in paragraph (3), a felony punishable pursuant to this 218 subdivision where the term is not specified in the underlying offense shall be punishable by a 219 term of imprisonment in a county jail for 16 months, or two or three years. 220 (2) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision 221 shall be punishable by imprisonment in a county jail for the term described in the underlying 222 offense. 223 (3) Notwithstanding paragraphs (1) and (2), where the defendant (A) has a prior or 224 current felony conviction for a serious felony described in subdivision (c) of Section 1192.7 or a 225 prior or current conviction for a violent felony described in subdivision (c) of Section 667.5, (B) 226 has a prior felony conviction in another jurisdiction for an offense that has all the elements of a 227 serious felony described in subdivision (c) of Section 1192.7 or a violent felony described in 228 subdivision (c) of Section 667.5, (C) is required to register as a sex offender pursuant to Chapter 229 5.5 (commencing with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime and as part 230

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of the sentence an enhancement pursuant to Section 186.11 is imposed, an executed sentence for 231 a felony punishable pursuant to this subdivision shall be served in state prison. 232 (4) Nothing in this subdivision shall be construed to prevent other dispositions authorized 233 by law, including pretrial diversion, deferred entry of judgment, or an order granting probation 234 pursuant to Section 1203.1. 235 (5) (A) Unless the court finds that, in the interests of justice, it is not appropriate in a 236 particular case, the court, when imposing a sentence pursuant to paragraph (1) or (2) of this 237 subdivision, shall suspend execution of a concluding portion of the term for a period selected at 238 the court's discretion. 239 (B) The portion of a defendant's sentenced term that is suspended pursuant to this 240 paragraph shall be known as mandatory supervision, and shall begin upon release from custody. 241 During the period of mandatory supervision, the defendant shall be supervised by the county 242 probation officer in accordance with the terms, conditions, and procedures generally applicable 243 to persons placed on probation, for the remaining unserved portion of the sentence imposed by 244 the court. The period of supervision shall be mandatory, and may not be earlier terminated 245 except by court order. Any proceeding to revoke or modify mandatory supervision under this 246 subparagraph shall be conducted pursuant to either subdivisions (a) and (b) of Section 1203.2 or 247 Section 1203.3. During the period when the defendant is under such supervision, unless in actual 248 custody related to the sentence imposed by the court, the defendant shall be entitled to only 249 actual time credit against the term of imprisonment imposed by the court. Any time period which 250 is suspended because a person has absconded shall not be credited toward the period of 251 supervision. 252 (6) The sentencing changes made by the act that added this subdivision shall be applied 253 prospectively to any person sentenced on or after October 1, 2011. 254 (7) The sentencing changes made to paragraph (5) by the act that added this paragraph 255 shall become effective and operative on January 1, 2015, and shall be applied prospectively to 256 any person sentenced on or after January 1, 2015. 257 (i) This section shall remain in effect only until January 1, 2017, and as of that date is 258 repealed, unless a later enacted statute, that is enacted before that date, deletes or extends that 259 date. 260

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Los Angeles County Bar Association. STATEMENT OF REASONS: The Problem: Trial courts have long had the power to recall the sentence of a person committed to state prison and to give that person a different (usually lesser) sentence. This section, however, was not amended when the realignment laws came into effect. Realignment created a new type of felony “prison” sentence, which is a felony, non-probationary sentence served in county jail. In the codes, this punishment is commonly denoted as a sentence “pursuant to subdivision (h) of Section 1170.” The persons who are sentenced under this provision are non-violent and their crimes of commitment are less serious. Only the most serious offenders are actually sentenced to state prison. This is essentially a technical fix.

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One other issue is that at times District Attorneys become aware of defendants who, for one reason or another, should have their sentences recalled and be resentenced to a lesser term. There presently is no mechanism for a District Attorney to ask the court to recall a sentence to fix the problem. The Solution: This resolution fixes the two problems. It applies the power to recall to county jail prison sentences. It also give the District Attorney the power to ask the court to recall a sentence. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION This concept is currently part of AB 1156, now pending before the Legislature. AUTHOR AND/OR PERMANENT CONTACT: Mark Harvis, Los Angeles County Public Defender, 320 W. Temple Ste 590, Los Angeles, CA 90012 213 974-3066, mharvis@pubdef.lacounty.gov RESPONSIBLE FLOOR DELEGATE: Mark Harvis

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RESOLUTION 05-01-2015 DIGEST Trusts: Expands Statute of Frauds to Include Supporting Documentation Signed by the Decedent Amends Probate Code section 15206 to expand supporting documents that would be acceptable to show intent of the decedent to transfer real property into a trust. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Probate Code section 15206 to expand supporting documents that would be acceptable to show intent of the decedent to transfer real property into a trust. This resolution should be disapproved because the statute of frauds already allows written documents that are signed by the decedent which show intent to transfer real property into a trust. Under Probate Code section 850, subdivision (a)(3), which is often referred to as a Heggstad Petition, a trustee can petition the court to transfer real property into a trust as long as there is supporting documentation which shows it was the intent of the decedent to transfer the real property into the trust. The supporting documentation which is provided to the court to show intent can either be reference to the real property in the trust instrument itself, a schedule of trust assets, or a general assignment of property to the trust. As long as the petitioning party can provide written documentation that references the real property, courts usually grant the petition. However, if the petitioning party is unable to provide written documentation showing the intent of the decedent was to transfer the real property into the trust, then the court is inclined to deny the petition. The resolution states that courts deny Heggstad Petitions when there is not a specific reference to the subject real property because it violates the statute of frauds. However, it does not seem that the proponent’s resolution addresses the stated problem because a signed instrument by the decedent that either assigned the real property to the trust or identified the real property as a trust asset would still be required. Senate Bill No. 155 (Hertzberg) (SB 155) created an entire section in the Probate Code that would have allowed property that was held outside of the decedent’s trust to be transferred to the trust with a pour-over will without the need to probate the pour-over will; however, SB 155 is a two-year bill.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend Probate Code section 15206 to read as follows: § 15206. Statute of Frauds A trust in relation to real property is not valid unless evidenced by one of the following 1 methods: 2 (a) By a written instrument signed by the trustee, or by the trustee’s agent if authorized in 3 writing to do so. 4 (b) By a written instrument conveying the trust property signed by the settlor, or by the 5 settlor’s agent if authorized to do so. 6 (c) By operation of law. 7 (d) By an instrument signed by a decedent that assigned the decedent’s real property to 8 the trustee, or identifying the property as a trust asset, if the property would otherwise be 9 transferred to the trustee under the decedent’s will. 10

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Sacramento County Bar Association STATEMENT OF REASONS The Problem: Revocable Living Trusts are a standard estate planning tool. A primary motive is to “avoid probate”. One primary asset of a person’s estate is real property. An important step in creating the trust is “funding” it with the trustor’s assets. In preparing a trust, most practitioners will see that the trustor’s real property is transferred into the name of the trustee as trustee of the trust. A general assignment and/or a schedule listing the assets of the trust is also prepared. Finally, the practitioner will usually prepare a “pour-over will” that grants, upon their death, all of their property to the then trustee of their trust. Changes may occur with the trustor’s assets that can defeat the purpose of the trust. For example, a trustor sells their residence and buys a new property taking title in their own name. When a trustors refinances their property, many lenders require that title to the property be taken out of the name of the trustee and transferred back to the individual. After the refinance is completed, the property is often not transferred back. Often real property is outside of the trust and this fact is not discovered until after the trustor is deceased. The only way the trustee can then administer the trust is to obtain an order from the probate court transferring the property to the trustee. Sometimes this requires the necessity of a full probate of the trustor’s will, defeating the intentions of the trustor. Probate code § 850 (a)(3) allows a trustee to petition the court for an order transferring property to the a trust. This is a proceeding that is generally faster and cheaper than a full probate. In the case Estate of Heggstad (1993) 16 CA4th 943, the court granted a probate code § 850 petition where the trustor had created a trust, declared the subject property was a part of the trust estate but failed to execute and record a deed transferring the property to the trust. The court found that

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the requirements were met to declare that the property was an asset of the trust. “Heggstad petitions” are commonly used to settle trust estates when there is evidence of the trustor’s intention that an asset be included in the trust without the prior transfer of title to the trust. However, some courts have denied Heggstad petitions when there is not a specific reference to the subject real property (i.e. APN, legal description or address). These courts have held that the transfer would violate the statute of frauds (PC § 15206) as there is not a specific writing (See Osswald v. Anderson (1996) 49 CA4th 812). The Solution: This resolution would codify the holding in Heggstad via the addition of subsection (d) and would satisfy the statute of frauds by the use of a written pour-over will through subsection (e). With the increasing use of revocable trusts, this resolution would accomplish the trustor’s intent to avoid probate and would lighten the impact of unnecessary probate proceedings. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Presently, Senate Bill 155 is pending in the legislature, proposes a comprehensive addition to the probate code to allow a procedure for a petition for determination of property passing to a trustee without trust administration. At this time, the status of the bill is unknown. AUTHOR AND/OR PERMANENT CONTACT: Edward K. Dunn, Law Office of Edward K. Dunn, 850 Iron Point Road, Suite 204, Folsom, California 95630; (916) 333-0534; edwarddunnattorney@att.net. RESPONSIBLE FLOOR DELEGATE: Edward K. Dunn

SECTION COMMENTS TO RESOLUTION 05-01-2015 TRUSTS AND ESTATES SECTION OF THE STATE BAR OF CALIFORNIA OPPOSE TEXCOM opposes this Resolution for two reasons. First, TEXCOM believes that Probate Code section 15200 already adequately addresses this issue. Second, TEXCOM believes that the Resolution would improperly expand the reach of the Estate of Heggstad. DISCLAIMER: This position is only that of the TRUSTS & ESTATES SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California.

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Membership in the TRUSTS & ESTATES SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

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COUNTERARGUMENTS TO RESOLUTION 05-01-2015 ORANGE COUNTY BAR ASSOCIATION Under Heggstad, real property may be made a part of a trust estate, without the requirement of a deed transferring title of the real property to the trust, only if the owner of the real property is creating the trust with himself or herself as trustee. “[A] written declaration of trust by the owner of real property, in which he [or she] names himself [or herself] as trustee, is sufficient to create a trust in that property, and that the law does not require a separate deed transferring the property to the trust.” Estate of Heggstad, 16 Cal. App. 4th 943, 950 (1993).

The Resolution would permit a trust to be created in real property if the decedent executes a written assignment of the real property to the trustee or other instrument identifying the real property as an asset of the trust. In either case, however, the Resolution does not require that the decedent also be the settlor and the trustee of the trust, both of which are required under the Heggstad decision. Moreover, the additional requirement in the Resolution that the property would, in any event, be distributed to the trustee under the decedent’s will does not ensure that the trust is one that was created by the decedent with the decedent as trustee. For these reasons, the Resolution would do more than simply codify Heggstad; the Resolution would apply that holding to a myriad of factual situations that were not before, and, thus, not contemplated by, the Heggstad Court. Consider the following example: two years before his death, decedent (“D”) executes an assignment of “all of my real property, wherever located” not to D’s revocable living trust (of which D was the settlor and trustee), but to a separate, intentionally defective grantor trust (“DGT”) established by D four years before his death for the benefit of D’s son. Bank is named as sole trustee in the DGT instrument. D’s will also provides that any real estate owned by D at his death is to be distributed to the then acting trustee of the DGT. We know from the recent case of Ukkestad v. RBS Asset Finance, Inc, 235 Cal. App. 4th 156 (2015) that the language “all of my real property, wherever located,” examined in view of the Heggstad ruling, constitutes a sufficient description of the property to be transferred to the trust because it is possible to refer to public records to determine precisely what D’s real estate holdings were at the time of his death. See Ukkestad, supra, at 163-64. However, the problem with the Resolution is that the trust to which the property is sought to be confirmed could be any trust, regardless of whether D, at the time he executed the assignment, was also both the settlor and the trustee of such trust. Since Heggstad was decided under a narrow set of facts, then the Resolution – which states that its purpose is to codify, but not expand, Heggstad – should be similarly limited. BAR ASSOCIATION OF NORTHERN SAN DIEGO COUNTY

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The language of the proposed resolution does not consider what will happen if the Trustee intentionally removes a piece of real property from the Trust. This language could create ambiguity in trust funding.

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RESOLUTION 05-02-2015 DIGEST Trusts: Expands Persons with Standing to Petition to Determine Validity of Trust Amends Probate Code section 17200 to expand persons who would have standing to petition the court to be able to determine the validity of the terms of a trust or the existence of a trust. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Probate Code section 17200 to expand the persons who would have standing to petition the court to be able to determine the validity of the terms of a trust or the existence of a trust. This resolution should be approved in principle because it would clarify that interested persons other than the trustee or beneficiaries of a trust would have standing to bring a petition to determine the validity or existence of a trust. While a settlor/trustor is alive, generally, no one has standing to bring a petition against the trust to determine the validity or existence of a trust. Under Probate Code section 16061.7, after a settlor passes and either part or all of the trust becomes irrevocable, the successor trustee is required to give notice to the beneficiaries of the trust and the settlor’s heirs-at-law. Probate Code section 16061.7 provides that a beneficiary or heir-at-law has 120 days to bring an action to contest the trust, or 60 days if a copy of the trust was served upon them. However, there is nothing in the Probate Code that specifically authorizes someone who may have a beneficial interest in the trust to bring a trust contest. Currently, most trust contests filed by an heir-at-law or someone who may have a beneficial interest in the decedent’s trust are brought pursuant to either Probate Code section 17200, subdivision (b)(3) or section 850. Most courts have allowed the petition to proceed forward on the basis that if the petitioner would gain a pecuniary benefit from invalidating the trust, they should have standing to bring a trust contest. However, the courts seem to rely on who would have standing to contest a will, which is an “interested person” as defined under Probate Code section 48, and includes an heir, devisee, child, spouse, creditor, beneficiary, and anyone having a property right or claim against the estate, to bring a trust contest. Since these persons can contest a will, it seems to reason that these persons should also be able to contest a trust. However, there does not appear to be any language in the Probate Code that specifically gives interested persons in the trust, other than the trustee and beneficiaries, standing to challenge the validity or existence of a trust. If an opposing party to a trust contest were to object to the petitioner’s standing, a judge may take a literal interpretation of Probate Code section 17200. This resolution would clarify and codify what the normal practice is in the probate courts with regards to trust contests. However, instead of a specific list of persons who would have standing, it may be better to amend the code section to include “interested persons as defined under Probate Code section 48.”

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TEXT OF RESOLUTION RESOLVED, that the Conference of California Bar Associations recommends that legislation be sponsored to amend Probate Code section 17200 to read as follows: §17200 (a) Except as provided in Section 15800, a trustee or beneficiary of a trust may petition 1 the court under this chapter concerning the internal affairs of the trust or to determine the 2 existence of the trust. For purposes of subdivision (b)(3) & (4) of this Section, the following 3 parties may petition the court under this chapter: a trustee, a beneficiary, an heir-at-law of the 4 Settlor, a personal representative of the Settlor’s probate estate, a beneficiary of the Settlor’s 5 probate estate, and a beneficiary of the Settlor prior estate planning documents (including Wills 6 and Trusts). 7 (b) Proceedings concerning the internal affairs of a trust include, but are not limited to, 8 proceedings for any of the following purposes: 9 (1) Determining questions of construction of a trust instrument. 10 (2) Determining the existence or nonexistence of any immunity, power, privilege, duty, 11 or right. 12 (3) Determining the validity of a trust provision. 13 (4) Ascertaining beneficiaries and determining to whom property shall pass or be 14 delivered upon final or partial termination of the trust, to the extent the determination is not made 15 by the trust instrument. or a Settlor’s Will should it be determined that the trust instrument is 16 invalid, or that the trust instrument has been validly revoked. 17 (5) Settling the accounts and passing upon the acts of the trustee, including the exercise 18 of discretionary powers. 19 (6) Instructing the trustee. 20 (7) Compelling the trustee to do any of the following: 21 (A) Provide a copy of the terms of the trust. 22 (B) Provide information about the trust under Section 16061 if the trustee has failed to 23 provide the requested information within 60 days after the beneficiary's reasonable written 24 request, and the beneficiary has not received the requested information from the trustee within 25 the six months preceding the request. 26 (C) Account to the beneficiary, subject to the provisions of Section 16064, if the trustee 27 has failed to submit a requested account within 60 days after written request of the beneficiary 28 and no account has been made within six months preceding the request. 29 (8) Granting powers to the trustee. 30 (9) Fixing or allowing payment of the trustee's compensation or reviewing the 31 reasonableness of the trustee's compensation. 32 (10) Appointing or removing a trustee. 33 (11) Accepting the resignation of a trustee. 34 (12) Compelling redress of a breach of the trust by any available remedy. 35 (13) Approving or directing the modification or termination of the trust. 36 (14) Approving or directing the combination or division of trusts. 37 (15) Amending or conforming the trust instrument in the manner required to qualify a 38 decedent's estate for the charitable estate tax deduction under federal law, including the addition 39

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of mandatory governing instrument requirements for a charitable remainder trust as required by 40 final regulations and rulings of the United States Internal Revenue Service. 41 (16) Authorizing or directing transfer of a trust or trust property to or from another 42 jurisdiction. 43 (17) Directing transfer of a testamentary trust subject to continuing court jurisdiction 44 from one county to another. 45 (18) Approving removal of a testamentary trust from continuing court jurisdiction. 46 (19) Reforming or excusing compliance with the governing instrument of an organization 47 pursuant to Section 16105. 48 (20) Determining the liability of the trust for any debts of a deceased settlor. However, 49 nothing in this paragraph shall provide standing to bring an action concerning the internal affairs 50 of the trust to a person whose only claim to the assets of the decedent is as a creditor. 51 (21) Determining petitions filed pursuant to Section 15687 and reviewing the 52 reasonableness of compensation for legal services authorized under that section. In determining 53 the reasonableness of compensation under this paragraph, the court may consider, together with 54 all other relevant circumstances, whether prior approval was obtained pursuant to Section 15687. 55 (22) If a member of the State Bar of California has transferred the economic interest of 56 his or her practice to a trustee and if the member is a deceased member under Section 9764, a 57 petition may be brought to appoint a practice administrator. The procedures, including, but not 58 limited to, notice requirements, that apply to the appointment of a practice administrator for a 59 deceased member shall apply to the petition brought under this section. 60 (23) If a member of the State Bar of California has transferred the economic interest of 61 his or her practice to a trustee and if the member is a disabled member under Section 2468, a 62 petition may be brought to appoint a practice administrator. The procedures, including, but not 63 limited to, notice requirements, that apply to the appointment of a practice administrator for a 64 disabled member shall apply to the petition brought under this section. 65 (c) The court may, on its own motion, set and give notice of an order to show cause why 66 a trustee who is a professional fiduciary, and who is required to be licensed under Chapter 6 67 (commencing with Section 6500) of Division 3 of the Business and Professions Code, should not 68 be removed for failing to hold a valid, unexpired, unsuspended license. 69

(Proposed new language underlined; language to be deleted stricken)

PROPONENT: San Diego County Bar Association STATEMENT OF REASONS The Problem: As the law currently stands, probate code section 17200 only allows trustees or current beneficiaries of a trust to petition the court to determine the validity of the trust terms, or whether a trust has been properly revoked. The problem with this application is that a Settlor’s heirs-at-law, beneficiaries of a Settlor’s probate estate, or beneficiaries of a Settlor’s prior estate plan (including a Will, Trust Amendment, or prior Trust), have no standing under section 17200 to Petition the Court to determine the validity of the terms of a trust, or for an order confirming a trust’s revocation—in whole or in part.

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The only avenue these potential beneficiaries have pertaining to their prospective beneficial interest in the property held in a trust is to bring a Petition under Probate Code section 850. The problem is that when a Probate Code section 850 Petition is filed to return trust assets to a Settlor’s probate estate, the Court then requires a Petition under Probate Code section 17200 be brought concurrently to determine the validity of the trust terms or the revocation. However, the claimants under Probate Code section 850 often do not have standing to bring the claim, as they are neither a trustee, nor a beneficiary of the purportedly invalid or revoked trust. The likelihood that a current beneficiary of the trust will bring a claim on behalf of a beneficiary under Settlor’s probate estate or former estate plan is highly unlikely—especially since the instrument being challenged is potentially due to the conduct of those very individuals who are benefitting under the current trust terms. Moreover the trustee of the trust, though they have standing, cannot bring such a claim or they would be in breach of their fiduciary duties owed to the beneficiaries of the trust. As a result, a person who would potentially benefit under a Settlor’s probate estate or former testamentary instrument has no recourse to challenge the validity of the trust terms or petition for an order to confirm the revocation of the trust—even where the instrument was potentially created as a result of wrongful conduct by those with standing. The Solution: This resolution adds new language to Probate Code section 17200(a) and (b)(4) that gives standing to the personal representative or potential beneficiaries of a deceased Settlor to bring a Petition under Probate Code section 17200 to challenge the validity of the terms of a trust, or confirm its’ revocation, where those individuals formerly had no recourse. IMPACT STATEMENT This resolution does not affect any other law, statute, or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Kevin R. Yee, Albertson & Davidson, LLP, 2175 Salk Avenue, Suite 180, Carlsbad, California 92008, 760-804-2711, kevin@aldavlaw.com. RESPONSIBLE FLOOR DELEGATE: Kevin R. Yee

SECTION COMMENTS TO RESOLUTION 05-02-2015 TRUST AND ESTATES SECTION OF THE STATE BAR OF CALIFORNIA

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OPPOSE

CCBA Resolution 05-02-2015 proposes modifying subdivisions (a) and (b) of Probate Code section17200 to grant to specific classes of interested persons, such as heirs, who do not otherwise qualify as trustees or beneficiaries, the express right to file a petition challenging the validity of a trust. Admittedly, the Probate Code lacks a parallel statute for heirs and other interested persons that is equivalent to Probate Code section 17201 for trustees and beneficiaries.1 But, the absence of a parallel statute does not mean that heirs, who do not also qualify as beneficiaries, presently lack standing to challenge the validity of the trust. Probate Code section 17000, subdivision (b) confers concurrent jurisdiction on the probate court concerning actions and proceedings to determine the existence of the trust and other actions involving trustees and third persons, which would include actions by non-beneficiary heirs. Additionally, Probate Code section 16061.7 requires that 120-day notice to challenge the trust be given to heirs, in addition to beneficiaries. Case law confirms that standing is conveyed on heirs to directly challenge the validity or existence of the trust, separate and apart from indirectly challenging the trust through section 850 petitions. 2

Some courts require that a litigant who is bringing an 850 petition to challenge the transfer of assets to the trust also file a separate petition under section 17200(b)(3) to challenge the validity of the trust. Since only beneficiaries and trustees have standing to file petitions under Probate Code section 17200(b)(3), heirs and other interested persons who do not qualify as beneficiaries or trustees were feared to lack standing to challenge the validity of the trust under section 17200(b).

The stated goal of the CCBA Resolution, namely, adding statutory clarity to the right of heirs and other interested persons to challenge the validity of the trust, is laudable. However, TEXCOM believes that generally the courts statewide recognize that heirs and other interested persons already have standing (under Probate Code section 17000(b)(2), section 15001 and decisional law) to challenge the validity of a trust. TEXCOM is concerned that modifying the existing statute, as proposed by the CCBA Resolution, could negate well-established common law, creating rather than curing a problem.

TEXCOM also believes that the Resolution’s proposed solution -- adding heirs and other interested persons to the list of persons authorized under section17200, subdivision (a), to bring actions pursuant to section 17200, subdivision (b)(3) to determine the validity of a provision of the trust -- is premised on an incorrect interpretation of subdivision (b)(3). TEXCOM views the Resolution as mistakenly assuming that subdivision (b)(3) of section 17200 authorizes trustees and beneficiaries to petition to set aside (i.e., determine the existence of) the entire trust and not simply challenge a provision of the trust. TEXCOM’s reading of subdivision (b)(3) in the context of surrounding statutes, sections17000-17200, leads it to conclude that subdivision (b)(3) only allows petitions to determine the validity of provisions of the trust (such as an amendment or even restatement), but not to challenge the validity of or the existence of the trust itself. The authority of beneficiaries to file petitions attacking the existence (or entirety) of the trust is

1See also Probate Code section 8270, which specifically authorizes heirs and other interested parties to file a petition to revoke a will admitted to probate. 2 See Olson v. Toy (1996) 46 Cal.App.4th 818, 823 finding “[q]uite apart from authority under Probate Code section 9654 [now 850 et. seq.] plaintiffs [who were heirs and beneficiaries of a pre-existing will] have standing to maintain an action to invalidate the trust and compel deliver of trust assets to the estate.”

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set forth in a different subdivision, namely, subdivision (a) of section 17200 and not subdivision (b) of section 17200. The various forms of relief provided in section 17200(b) are expressly limited to the internal affairs of the trust and by definition would exclude actions to determine the existence or validity of the trust.

Probate Code section 17000, subdivision (a) grants the Probate Court exclusive jurisdiction over proceedings concerning the internal affairs of the Trust. By contrast, Probate Code section17000, subdivision (b) provides that probate court has concurrent jurisdiction with civil court in an action to determine the existence of the trust and other actions involving the trustees and third persons.

The import of separating of actions concerning the internal affairs of the trust in subdivision (a) from actions concerning the existence of the trust in subdivision (b) is that they are to be considered as different, the latter being something apart from the former. TEXCOM believes that any reading of section 17000, subdivisions (a)-(b) that construes actions to determine the existence of the trust as a subset of actions concerning the internal affairs of the trust would create an irreconcilable conflict between the probate and civil courts’ jurisdiction under the statute. Probate Code section 17000, subdivision (a) gives the probate court exclusive jurisdiction over the internal affairs of the trust. Probate Code section 17000, subdivision (b) gives the probate court concurrent jurisdiction (with the civil court) over actions to determine the existence of the trust. If actions to determine the existence of the trust also constitute actions concerning the internal affairs of the trust, then actions to determine the existence of the trust are under the exclusive jurisdiction of the Probate Court (by virtue of subdivision (a)) and simultaneously under the concurrent jurisdiction of the civil court (by virtue of subdivision (b)). The two positions are clearly irreconcilable and contrary to decisional law, which firmly holds that actions to determine the existence of the trust are not actions concerning the internal affairs of the trust.3

Existing Probate Code section 17200, subdivision (a) also distinguishes between actions concerning the internal affairs of the trust and actions concerning the existence of the trust.

TEXCOM’s reading of introductory language of existing subdivision (b) of section 17200 is that the subdivision authorizes trustees and beneficiaries to bring specific types of petitions concerning only the internal affairs of the trust.

Notably, the introductory language of subdivision (b) of current Probate Code section 17200 does not mention actions to challenge the existence of the trust. This appears intentional and should not be credited to legislative oversight, given the clear references in surrounding sections to actions to determine the “existence of the trust.” See sections 17000 and 17200, subdivision (a). Since subdivision (b)(3), which permits bringing an action to challenge the validity of a trust provision falls generally under subdivision (b) of section 17200 that deals only with the internal affairs of the trust, the relief under (b)(3) cannot be interpreted to include actions to challenge the existence of the trust, since such actions are not actions concerning the internal affairs of the trust. It follows that the CCBA Resolution, amending the statute to permit heirs and other interested parties to also bring actions under 17200, subdivisions (b)(3)-(4), would not solve the problem of granting heirs the express statutory authority to challenge the existence of the trust, but would instead create a new problem of giving heirs standing to

3 Among the rules of statutory construction is the principal that an interpretation should not be given that “interpret[s] away clear language in favor of an ambiguity that does not exist” or leads to “absurd consequences.” People v. Steffens (1998) 62 Cal.App.4th 1273, 1284.

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challenge a trust provision (i.e., amendment to the trust) when they do not qualify as beneficiaries of the original trust and should have no standing.

TEXCOM has additional concerns with the portions of the CCBA Resolution that identifies new, broad classes of persons to be given authority to challenge the existence of the trust. The language proposed by the CCBA Resolution is: “trustee, a beneficiary, an heir-at-law of the Settlor, a personal representative of the Settlor’s probate estate, a beneficiary of the Settlor’s probate estate, and a beneficiary of the Settlor prior estate planning documents (including Wills and Trusts).”

By identifying specific classes of persons entitled to file the petition, TEXCOM is concerned that the language proposed by the CCBA Resolution would require notice to additional persons to whom notice is not currently required to be given included under Probate Code section 16061.7, subdivision (b). Section 16061.7, subdivision (b) limits notice to trustee, beneficiaries and heirs. The CCBA language would appear to place an undue burden on trustees to search for a lifetime’s worth of previously destroyed or discarded estate planning instruments in order to discern the identity of and notify long-forgotten beneficiaries, even where the prior beneficiaries have nothing to gain from the setting aside of the trust.4 DISCLAIMER: This position is only that of the TRUSTS & ESTATES SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the TRUSTS & ESTATES SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

COUNTERARGUMENTS TO RESOLUTION 05-02-2015 ORANGE COUNTY BAR ASSOCIATION Section 17200 governs the internal affairs of a trust. The Law Revision Commission Comments to the section state, "the list of grounds for a petition concerning the internal affairs of a trust under subdivision (b) is not exclusive and is not intended to preclude a petition for any purpose that can be characterized as an internal affair of the trust." The only persons interested in the internal affairs of a trust are the trustees and the beneficiaries. Beneficiaries under a prior version of a trust who have been omitted in a later version of the trust already have standing under Section 17200 to contest the later version. A

4 A more practical approach might be use the flexible term “interested persons,” defining it to include those who would be entitled to a donative transfer of trust property upon the setting aside of the instrument.

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beneficiary under the prior version alleges he/she is still a beneficiary because the subsequent version is invalid. Standing to sue requires that a party commencing a legal proceeding has some justiciable interest in the outcome of a court proceeding. Otherwise courts would be flooded with lawsuits for which the courts can give only advisory opinions. The proposed amendment would automatically allow some persons to sue who may have no interest at all in the trust or its assets, regardless of the outcome of the litigation. An heir at law omitted from a valid trust has no interest in the trust assets; a personal representative of the Settlor's probate estate has no interest in assets validly transferred to a valid trust; a beneficiary of the Settlor's probate estate has no interest in assets validly transferred to a valid trust, a beneficiary under a prior will of the Settlor has no interest in assets validly transferred to a valid trust. The concerns of the proponent of the amendment can be addressed by an amendment that allows trustees, beneficiaries and "interested persons" (as that term is defined in Probate Code § 48) to file a petition under subdivisions (b)(3) and (4) Section 17200. In such a petition the person filing the petition would have to state facts showing the person has some stake in the outcome of the proceeding: Subdivision (a) of section 48 does not purport to provide an exclusive list of recognizable interests. Rather, it permits the court to designate as an interested person anyone having an interest in an estate which may be affected by a probate proceeding. Subdivision (b) allows the court to determine the sufficiency of that party's interest for purposes of each proceeding conducted. Thus, a party may qualify as an interested person entitled to participate for purposes of one proceeding but not for another. Estate of Davis (1990) 219 Cal.App.3d, 663, 668. The trial court's decision on whether a person is an "interested person" is insulated on appeal because the decision is reviewed under the abuse of discretion standard. In re Estate of Prindle (2009) 173 Cal.App.4th 119,126.

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RESOLUTION 05-03-2015

DIGEST Trusts: No-Contest Clauses Amends Probate Code section 16061.7 to clarify that upon request a trustee must provide any document containing a no-contest clause applicable to the trust. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Probate Code section 16061.7 to clarify that upon request a trustee must provide any document containing a no-contest clause applicable to the trust. This resolution should be disapproved as unnecessary because a trustee is already required to provide upon demand any document containing directions or instructions to the trustee, which would necessarily include a document containing a no-contest clause. Probate Code sections 16060 et seq. prescribe the circumstances under which a trustee must provide information about a trust to various interested persons. Section 16061.7 specifies the information that a trustee must provide upon the occurrence of certain specified events, including when the trust becomes irrevocable because of the death of the settlor, and that a beneficiary can request a copy of the terms of the trust in those instances. “Terms of the trust” is defined in section 16060.5 to include amendments and restatements of the trust, as well as directions and instructions to the trustee. It is almost certain that any no-contest clause would be contained within one of those documents, and that a potential trust challenger would learn of it upon reviewing them. And while it is theoretically possible that a no-contest clause would be found in an ancillary document, such as a pour-over will, that would indeed be a rare occurrence and the trustee herself may not be in possession of the relevant document. Additionally, no-contest clauses are effectively disfavored under California law since the 2010 amendments to the no-contest statutes. Courts will only enforce no-contest clauses where there is an absence of “probable cause” for bringing a contest. The probable cause threshold is a low threshold to meet. In light of this policy, it is highly unlikely that a court of equity would enforce a no-contest clause against a challenger who was unaware of its existence. Therefore, the proposed amendment is unnecessary. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Probate Code section 16061.7 to read as follows: §16061.7 (a) A trustee shall serve a notification by the trustee as described in this section in the 1 following events: 2

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(1) When a revocable trust or any portion thereof becomes irrevocable because of the 3 death of one or more of the settlors of the trust, or because, by the express terms of the trust, the 4 trust becomes irrevocable within one year of the death of a settlor because of a contingency 5 related to the death of one or more of the settlors of the trust. 6 (2) Whenever there is a change of trustee of an irrevocable trust. 7 (3) Whenever a power of appointment retained by a settlor is effective or lapses upon 8 death of the settlor with respect to an inter vivos trust which was, or was purported to be, 9 irrevocable upon its creation. This paragraph shall not apply to a charitable remainder trust. For 10 purposes of this paragraph, “charitable remainder trust” means a charitable remainder annuity 11 trust or charitable remainder unitrust as defined in Section 664(d) of the Internal Revenue Code.1 12 (4) The duty to serve the notification by the trustee pursuant to this subdivision is the 13 duty of the continuing or successor trustee, and any one cotrustee may serve the notification. 14 (b) The notification by the trustee required by subdivision (a) shall be served on each of 15 the following: 16 (1) Each beneficiary of the irrevocable trust or irrevocable portion of the trust, subject to 17 the limitations of Section 15804. 18 (2) Each heir of the deceased settlor, if the event that requires notification is the death of 19 a settlor or irrevocability within one year of the death of the settlor of the trust by the express 20 terms of the trust because of a contingency related to the death of a settlor. 21 (3) If the trust is a charitable trust subject to the supervision of the Attorney General, to 22 the Attorney General. 23 (c) A trustee shall, for purposes of this section, rely upon any final judicial determination 24 of heirship, known to the trustee, but the trustee shall have discretion to make a good faith 25 determination by any reasonable means of the heirs of a deceased settlor in the absence of a final 26 judicial determination of heirship known to the trustee. 27 (d) The trustee need not provide a copy of the notification by trustee to any beneficiary or 28 heir (1) known to the trustee but who cannot be located by the trustee after reasonable diligence 29 or (2) unknown to the trustee. 30 (e) The notification by trustee shall be served by mail to the last known address, pursuant 31 to Section 1215, or by personal delivery. 32 (f) The notification by trustee shall be served not later than 60 days following the 33 occurrence of the event requiring service of the notification by trustee, or 60 days after the 34 trustee became aware of the existence of a person entitled to receive notification by trustee, if 35 that person was not known to the trustee on the occurrence of the event requiring service of the 36 notification. If there is a vacancy in the office of the trustee on the date of the occurrence of the 37 event requiring service of the notification by trustee, or if that event causes a vacancy, then the 38 60-day period for service of the notification by trustee commences on the date the new trustee 39 commences to serve as trustee. 40 (g) The notification by trustee shall contain the following information: 41 (1) The identity of the settlor or settlors of the trust and the date of execution of the trust 42 instrument. 43 (2) The name, mailing address and telephone number of each trustee of the trust. 44 (3) The address of the physical location where the principal place of administration of the 45 trust is located, pursuant to Section 17002. 46 (4) Any additional information that may be expressly required by the terms of the trust 47 instrument. 48

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(5) A notification that the recipient is entitled, upon reasonable request to the trustee, to 49 receive from the trustee a true and complete copy of the terms of the trust and a copy of any 50 document executed concurrently therewith or subsequent thereto containing a no contest clause 51 with respect to the trust. 52 (h) If the notification by the trustee is served because a revocable trust or any portion of it 53 has become irrevocable because of the death of one or more settlors of the trust, or because, by 54 the express terms of the trust, the trust becomes irrevocable within one year of the death of a 55 settlor because of a contingency related to the death of one or more of the settlors of the trust, the 56 notification by the trustee shall also include a warning, set out in a separate paragraph in not less 57 than 10-point boldface type, or a reasonable equivalent thereof, that states as follows: 58 “You may not bring an action to contest the trust more than 120 days from the date this 59 notification by the trustee is served upon you or 60 days from the date on which a copy of the 60 terms of the trust is mailed or personally delivered to you during that 120-day period, whichever 61 is later.” 62 (i) Any waiver by a settlor of the requirement of serving the notification by trustee 63 required by this section is against public policy and shall be void. 64 (j) A trustee may serve a notification by trustee in the form required by this section on any 65 person in addition to those on whom the notification by trustee is required to be served. A trustee 66 is not liable to any person for serving or for not serving the notice on any person in addition to 67 those on whom the notice is required to be served. A trustee is not required to serve a notification 68 by trustee if the event that otherwise requires service of the notification by trustee occurs before 69 January 1, 1998. 70

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Orange County Bar Association STATEMENT OF REASONS The Problem: Currently a beneficiary provided the notification required by Section 16061.7 may request a copy of the terms of the trust and any document required by the trust to be provided to the beneficiary. The beneficiary has one hundred twenty (120) days from the date the notification is mailed to decide whether or not to bring a challenge to the trust. One major consideration for beneficiaries in deciding whether or not to challenge a trust is whether there is a no contest clause. Many trusts contain such a provision in the body of the trust itself but such a clause may be contained in another document executed concurrently therewith or subsequent thereto. There is no requirement under the statute to provide a pour over will or other document executed concurrently with the trust or executed subsequent to the trust which contains a no contest clause which would affect a beneficiary who challenges the trust. It is a trap for the unwary. A beneficiary should be informed as to whether or not the trust is subject to a no contest clause if requested during the 120 day period. The Solution: The amendment makes it clear that upon request the trustee must provide any document containing a no contest clause which would affect the trust as well as the trust instrument.

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IMPACT STATEMENT The proposed resolution does not affect any other law, statue or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Elaine B. Alston, Alston, Alston & Diebold, 6 Hutton Centre Drive, Suite 1040, Santa Ana, CA 92707; (714) 556-9400; Elaine@aadlawyers.com RESPONSIBLE FLOOR DELEGATE: Elaine B. Alston

SECTION COMMENTS TO RESOLUTION 05-03-2015 TRUSTS AND ESTATES SECTION OF THE STATE BAR OF CALIFORNIA OPPOSE TEXCOM opposes this Resolution. A trustee’s notification under Probate Code section 16061.7 must state that the recipient is entitled to receive from the trustee a true and correct copy of the terms of the trust. As defined in Probate Code section 16060.5, terms of the trust includes “ . . . any directions or instructions to the trustee that affect the disposition of the trust . . .” A trustee already has a duty to provide a document containing a no contest clause because such a clause contains directions or instructions to the trustee that affect the disposition of the trust within the meaning of the terms of the trust to which beneficiaries are entitled. Therefore, the proposed amendment to 16061.7 is unnecessary. DISCLAIMER: This position is only that of the TRUSTS & ESTATES SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California.

Membership in the TRUSTS & ESTATES SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

COUNTERARGUMENTS TO RESOLUTION 05-03-2015 BAR ASSOCIATION OF NORTHERN SAN DIEGO COUNTY Although we do not disagree with this resolution, we would approve as amended:

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(5) A notification that the recipient is entitled, upon reasonable request to the trustee, to receive from the trustee a true and complete copy of the terms of the trust and a copy of any document executed concurrently therewith or subsequent thereto covered by or containing a no contest clause with respect to the trust.

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RESOLUTION 05-04-2015 DIGEST Probate: Delete Reference to Repealed Probate Code Section Amends Probate Code section 16062 to delete a reference to Probate Code section 21350.5 which was repealed by the Legislature in 2014. RESOLUTIONS COMMITTEE RECOMMENDATIONS APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Probate Code section 16062 to delete a reference to Probate Code section 21350.0 which was repealed by the Legislature in 2014. This resolution should be approved in principle because this code section no longer exists. Probate Code section 21350.5 was repealed in 2014. The section should be amended to reflect current law. TEXT OF RESOLUTION RESOLVED, that the Conference of California Bar Associations recommends that legislation be sponsored to amend Probate Code section 16062 to read as follows: §16062 (a) Except as otherwise provided in this section and in Section 16064, the trustee shall 1 account at least annually, at the termination of the trust, and upon a change of trustee, to each 2 beneficiary to whom income or principal is required or authorized in the trustee's discretion to be 3 currently distributed. 4 (b) A trustee of a living trust created by an instrument executed before July 1, 1987, is 5 not subject to the duty to account provided by subdivision (a). 6 (c) A trustee of a trust created by a will executed before July 1,1987, is not subject to the 7 duty to account provided by subdivision(a), except that if the trust is removed from continuing 8 court jurisdiction pursuant to Article 2 (commencing with Section 17350) of Chapter 4 of Part 5, 9 the duty to account provided by subdivision (a) applies to the trustee. 10 (d) Except as provided in Section 16064, the duty of a trustee to account pursuant to 11 former Section 1120.1a of the Probate Code (as repealed by Chapter 820 of the Statutes of 1986), 12 under a trust created by a will executed before July 1, 1977, which has been removed from 13 continuing court jurisdiction pursuant to former Section 1120.1a, continues to apply after July 1, 14 1987. The duty to account under former Section 1120.1a may be satisfied by furnishing an 15 account that satisfies the requirements of Section 16063. 16 (e) Any limitation or waiver in a trust instrument of the obligation to account is against 17 public policy and shall be void as to any sole trustee as described in subdivision (a) of Section 18 21380, but not described in Section 21382. who is either of the following: 19

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(1) A disqualified person as defined in Section 21350.5. 20 (2) Described in subdivision (a) of Section 21380, but not described in Section 21382. 21

(Proposed new language underlined; language to be deleted stricken) PROPONENT: San Diego County Bar Association STATEMENT OF REASONS The Problem: Existing Probate Code section 16062 makes reference to “A disqualified person as defined in Section 21350.5.” Section 21350.5 was repealed by the Legislature effective in 2014. The Solution: This resolution deletes the obsolete reference to Probate Code section 21350.5. IMPACT STATEMENT This resolution does not affect any other law, statute, or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Kevin R. Yee, Albertson & Davidson, LLP, 2175 Salk Avenue, Suite 180, Carlsbad, California 92008, 760-804-2711, kevin@aldavlaw.com. RESPONSIBLE FLOOR DELEGATE: Kevin R. Yee

SECTION COMMENTS TO RESOLUTION 05-04-2015 TRUST AND ESTATES SECTION OF THE STATE BAR OF CALIFORNIA APPROVE TEXCOM agrees the Resolution is appropriate to clean up the language of 16062. DISCLAIMER: This position is only that of the TRUSTS & ESTATES SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the TRUSTS & ESTATES SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

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RESOLUTION 05-05-2015

DIGEST Trusts: Attorney Fees and Costs for Failure to Provide Trust Terms Adds Probate Code section 17212 to allow attorney’s fees and costs to a beneficiary forced to compel a trustee to provide the terms of the trust. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution adds Probate Code section 17212 to allow attorney’s fees and costs to a beneficiary forced to compel a trustee to provide the terms of the trust. This resolution should be disapproved because it fails to provide standards by which the court would judge non-compliance with the proposed statute and does not allow the court discretion to excuse non-compliance in extenuating circumstances. Probate Code section 16060 et seq. prescribes the circumstances under which a trustee must provide information about a trust, including copies of the trust and accountings, to various interested persons such as beneficiaries. Section 16060.7 specifies when the trustee must provide the “terms of the trust” to a beneficiary. “Terms of the trust” is defined in section 16060.5 to include the trust instrument itself as well as any amendments and restatements of the trust. The Probate Code provides for the award of attorney’s fees and costs to a litigant who has to force a trustee to comply with certain information-providing provisions. For example, section 17211 allows for such an award when a trustee in bad faith fails to properly account to the beneficiaries, but there is no similar sanction where a trustee fails to provide a copy of the trust under section 16060.7. While it might indeed be desirable to impose such a sanction, this proposed amendment fails to provide any standards by which the court can judge non-compliance with the proposed statute. For example, it does not specify the time within which the trustee must provide a copy of the trust. It also does not allow discretion to the court to excuse non-compliance in extenuating circumstances, or where the trustee does not act in bad faith. It is thus out of line with the other fee-shifting provisions of the Probate Code, including section 17211, under which an award of fees and costs is discretionary. TEXT OF RESOLUTION RESOLVED, that the Conference of California Bar Associations recommends that legislation be sponsored to add Probate Code section 17212 to read as follows: § 17212 If a trustee fails to provide the terms of the trust pursuant to Section 16060.7, the court 1 shall award the petitioner the costs of litigation including attorney’s fees, incurred to compel the 2 trustee to provide a copy of the trust to the beneficiary under Section 17200. The award of 3

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attorney’s fees and costs under this section is mandatory unless the court finds that the trustee 4 acted under a valid exception pursuant Section 16069. 5

(Proposed new language underlined; language to be deleted stricken) PROPONENT: San Diego County Bar Association STATEMENT OF REASONS The Problem: Under Probate Code section 16060.7 a trustee has a duty to provide the terms of the trust to a beneficiary upon request. If the trustee refuses or ignores the requests, the beneficiary must bring a petition under Probate Code section 17200, subdivision (b)(7) to compel the trustee to provide the terms of the Trust. Currently, there is no consequence for a trustee who denies a beneficiaries request without any justification causing the beneficiary to bear the attorney fees and costs of petitioning the court. The Solution: This resolution creates a new fee shifting provision in the Probate Code to require the court to award attorney’s fees and costs to a beneficiary who is forced to bring a petition to obtain a copy of the trust. This fee shifting provision has a limited application to obtaining the trust document; therefore, it will not substantially affect fee shifting in probate matters except as it applies in this narrow provision. IMPACT STATEMENT This resolution does not affect any other law, statute, or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Kevin R. Yee, Albertson & Davidson, LLP, 2175 Salk Avenue, Suite 180, Carlsbad, California 92008, 760-804-2711, kevin@aldavlaw.com. RESPONSIBLE FLOOR DELEGATE: Kevin R. Yee

SECTION COMMENTS TO RESOLUTION 05-05-2015 TRUST AND ESTATES SECTION OF THE STATE BAR OF CALIFORNIA

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OPPOSE

A trustee has a general duty to provide the terms of a trust to a beneficiary upon request under Probate Code section 16060.7. When a trustee refuses or ignores the request, a beneficiary must petition to compel the trustee to provide the terms of the trust. The proposal creates a consequence for a trustee who refuses the request: the trustee would be required to bear the attorney’s fees and costs of a beneficiary who petitions the court to compel the trustee to provide the terms of the trust.

TEXCOM is concerned that the proposal imposes a harsh, strict liability standard on trustees, and suggests that courts be permitted to consider the cause for the trustee's failure, rather than making the award mandatory in all cases. It is suggested that a petitioner be required to establish that the trustee acted in bad faith or there was no reasonable cause for the failure to provide the trust instrument. The Committee further believes that the award should be for "reasonable" attorney's fees (see, e.g., § 15642(9)(g) and 17211(b)); that a time period within which the trustee must provide the terms of the trust be specified (e.g., 60 days, § 17200(b)(7)(B)); and that the trustee be personally liable for the award of a beneficiary's fees and costs (see § 17211(b)). DISCLAIMER: This position is only that of the TRUSTS & ESTATES SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the TRUSTS & ESTATES SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

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RESOLUTION 05-06-2015 DIGEST Trusts: Modification of Irrevocable Trust Amends Probate Code sections 15403 and 15404 to clarify and simplify the process for judicially modifying or terminating irrevocable trusts. RESOLUTION COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Probate Code sections 15403 and 15404 to clarify and simplify the process for judicially modifying or terminating irrevocable trusts. This resolution should be disapproved because it does not simplify the process to terminate or modify the terms of an irrevocable trust and creates unintended consequences. Under Probate Code section 15403, if all of the beneficiaries consent, then they may compel modification or termination of an irrevocable trust upon petition to the court. Even if the continuance of the trust is necessary to carry out a material purpose, the court still has the discretion to modify or terminate the trust, unless there is a valid restraint on the transfer of the beneficiary’s interest, which is usually a spendthrift trust. Settlors usually create spendthrift trusts for a beneficiary who has difficulty properly managing money or owes a lot of debt, so it is logical that the court would not have the discretion to terminate this type of irrevocable trust. Under Probate Code section 15404, if the settlor and all beneficiaries of an irrevocable trust consent, they may compel the modification or termination of the trust without court approval. If a beneficiary does not consent, then the consenting beneficiaries have the ability to petition the court for modification or termination of the trust. Both code sections are very clear on the process of modifying or terminating an irrevocable trust. The resolution attempts to combine the two code sections into 15403 so that if all settlors and beneficiaries of an irrevocable trust agree in writing, they may modify, terminate or partially terminate the trust. It is unclear what would happen if not all of the settlors and beneficiaries were in agreement. Also, the proposed change states that the court shall grant the petition to make the change with consent of the beneficiaries, but does not say what is to be done if a beneficiary does not agree to the proposed change. Lastly, the proposed change requires that all of the settlors must consent to the modification or termination, but does not address what should be done if one of the settlors is deceased and the other settlors and beneficiaries are unable to obtain the deceased settlor’s consent. These appear to be unintended consequences which the proponent has created in the proposed resolution. For these reasons, this resolution should be disapproved.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend Probate Code sections 15403 and 15404 to read as follows: §15403 (a) Except as provided in subdivision (b), if allSubject to Section 15404, if all settlors and 1 beneficiaries of an irrevocable trust consent in writing, they may compel modification or 2 termination ofmodify, terminate or partially terminate the trust upon petition to. The court. 3 shall otherwise grant a petition for such a change with 4 (b) If the continuanceconsent of the trust is necessary to carry out’s beneficiaries unless 5 the court determines the change would defeat a material purpose of the trust, the trust cannot be 6 modified or terminated unless the court, in its discretion, determines that the reason for doing so 7 under the circumstances outweighs the interest in accomplishing a material purpose of the trust. 8 Under this section the court does not have discretion to permit termination of a trust thatafter 9 considering among other things the views of any available settlor and whether the trust is subject 10 to a valid restraint on the transfer of the beneficiary'sa beneficiary’s interest as provided in 11 Chapter 2 (commencing with Section 15300). For purposes of this section, a trust has multiple 12 settlors only if more than one settlor transferred property to the trust. For example, the settlor of 13 a survivor’s trust created by spouses and funded only with the surviving spouse’s share of the 14 community property is the surviving spouse, while the settlor of a marital trust or credit shelter 15 trust funded only with the deceased spouse’s share of the community property was the deceased 16 spouse. 17 18 §15404 19 For the purposes of Section 15403, the court may limit the beneficiaries whose consent is 20 required to those who are both required to receive notice of the petition and whose interests the 21 court determines are reasonably likely to be substantially affected under the circumstances. 22 15404. (a) If the settlor and all beneficiaries of a trust consent, they may compel the 23 modification or termination of the trust. 24 (b) If any beneficiary does not consent to the modification or termination of the trust, 25 upon petition to the court, the other beneficiaries, with the consent of the settlor, may compel a 26 modification or a partial termination of the trust if the interests of the beneficiaries who do not 27 consent are not substantially impaired. 28 (c) If the trust provides for the disposition of principal to a class of persons described 29 only as "heirs" or "next of kin" of the settlor, or using other words that describe the class of all 30 persons who would take under the rules of intestacy, the court may limit the class of 31 beneficiaries whose consent is needed to compel the modification or termination of the trust to 32 the beneficiaries who are reasonably likely to take under the circumstances. 33

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Sacramento County Bar Association STATEMENT OF REASONS

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The Problem: Probate Code Sections 15403 and 15404 allow irrevocable trusts to be modified or terminated if all beneficiaries consent to the change. Under Section 46, the term “beneficiary” is very broadly defined to include “a person who has any present or future interest, vested or contingent.”

Section 15404 requires settlor consent in addition to beneficiary consent but is more flexible than Section 15403. For example, Section 15404 allows the court to limit the class of beneficiaries whose consent is required in certain circumstances, eliminating the need for a guardian ad litem to represent minor or unborn contingent beneficiaries. Section 15403 does not give the court that discretion. (In practice, those desiring to modify or terminate a trust with settlor consent under Section 15404 often obtain appointment of a guardian ad litem ex parte and then proceed without further court involvement.) Also, Section 15403 prohibits the early trust termination if the trust document has a spendthrift clause (as most do). Irrevocable trust modifications or terminations are very common. Section 15403 and Section 15404 are often the only legal or practical avenues for modifying or terminating an irrevocable trust, but these statues are flawed. They use imprecise language that makes their scope and application unclear. Also, trust modifications can greatly vary, from significant changes expected to alter beneficiaries’ economic benefits or that are tantamount to total or partial trust terminations, to refinements of administrative provisions with no expected negative impact to any beneficiary. These statutes fail to give the courts sufficient discretion regarding what beneficiary consents should be required in the particular circumstances (and thus whether to require a guardian ad litem for minor and unborn contingent beneficiaries) or whether to terminate a trust despite a spendthrift clause. If all settlors and beneficiaries consent to a change, they should be able to make the change by written agreement. Absent unanimous beneficiary consent, the court should have broad discretion. One statute (Section 15403) should deal with the standards required for the change. Another statute (Section 15404) should allow the court to determine whether all beneficiaries must consent or whether the beneficiaries whose consent is required should be limited to those required to receive notice (see Section 15804 for notice to future interest beneficiaries) and whose interest are reasonably likely to be substantially affected by the change. This would allow the court to carve out remote (sometimes intransigent or unresponsive) beneficiaries, or to decline to appoint a guardian ad litem for beneficiaries who lack capacity to consent (including unascertained beneficiaries) if it determines the cost and delay of appointment would outweigh the potential benefits. The Solution: This Resolution would propose changes to clarify and simplify the process for judicially modifying or terminating irrevocable trusts. IMPACT STATEMENT The proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known.

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AUTHOR AND/OR PERMANENT CONTACT: Sil Reggiardo, Downey Brand LLP, 621 Capitol Mall, Suite 1800, Sacramento, CA 95814-4731, (916) 520-5374, sreggiardo@downeybrand.com. RESPONSIBLE FLOOR DELEGATE: Sil Reggiardo

SECTION COMMENTS TO RESOLUTION 05-06-2015 TRUSTS AND ESTATES SECTION OF THE STATE BAR OF CALIFORNIA APPROVE IN PRINCIPLE

Generally, TEXCOM favors changes to Probate Code Section 15403 and 15404 regarding modification of irrevocable trusts. TEXCOM has been working on a similar legislative proposal with different language, but supports the concept behind this Resolution. DISCLAIMER: This position is only that of the TRUSTS & ESTATES SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California.

Membership in the TRUSTS & ESTATES SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

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RESOLUTION 06-01-2015 DIGEST Statutory Offers: Recoverable Expert Fees Are Post-Offer Only Amends Code of Civil Procedure section 998 to provide that the recoverable expert costs, following an unaccepted statutory offer to compromise, are only for those incurred post-offer. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: Similar to Resolution 08-05-2013, which was approved in principle. Reasons: This resolution amends Code of Civil Procedure section 998 to provide that the recoverable expert costs, following an unaccepted statutory offer to compromise, are only for those incurred post-offer. This resolution should be approved in principle because it eliminates a disparity between plaintiffs and defendants which the statute currently contains. The current statute allows a prevailing defendant to recover from a plaintiff all expert fees the defendant incurred before and after the defendant’s offer to compromise. Yet, it only allows a prevailing plaintiff to recover those expert costs that the plaintiff incurred after the defendant rejected a statutory demand to settle. There is no sound reason to allow a prevailing defendant whose 998 offer the plaintiff rejected any greater benefit than a prevailing plaintiff whose 998 offer the defendant rejected. The courts recognize and make clear that this inexplicable and troublesome disparity is a function of statutory language, but it must be for the legislature to address and rectify. It is not within the judicial province of the courts to rewrite. (See Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1019, fn. 3; Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, 532.) This resolution would do just that. The resolution is similar to Assembly Bill No. 1141 (2014-2016 Regular Session) § 2. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Code of Civil Procedure section 998 to read as follows: §998 (a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as 1 provided in this section. 2 (b) Not less than 10 days prior to commencement of trial or arbitration (as provided in 3 Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in 4 writing upon any other party to the action to allow judgment to be taken or an award to be 5 entered in accordance with the terms and conditions stated at that time. The written offer shall 6 include a statement of the offer, containing the terms and conditions of the judgment or award, 7 and a provision that allows the accepting party to indicate acceptance of the offer by signing a 8

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statement that the offer is accepted. Any acceptance of the offer, whether made on the document 9 containing the offer or on a separate document of acceptance, shall be in writing and shall be 10 signed by counsel for the accepting party or, if not represented by counsel, by the accepting 11 party. 12 (1) If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk 13 or the judge shall enter judgment accordingly. In the case of an arbitration, the offer with proof 14 of acceptance shall be filed with the arbitrator or arbitrators who shall promptly render an award 15 accordingly. 16 (2) If the offer is not accepted prior to trial or arbitration or within 30 days after it is 17 made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence 18 upon the trial or arbitration. 19 (3) For purposes of this subdivision, a trial or arbitration shall be deemed to be actually 20 commenced at the beginning of the opening statement of the plaintiff or counsel, and if there is 21 no opening statement, then at the time of the administering of the oath or affirmation to the first 22 witness, or the introduction of any evidence. 23 (c) (1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a 24 more favorable judgment or award, the plaintiff shall not recover his or her post offer costs and 25 shall pay the defendant's costs from the time of the offer. In addition, in any action or proceeding 26 other than an eminent domain action, the court or arbitrator, in its discretion, may require the 27 plaintiff to pay a reasonable sum to cover post offer costs of the services of expert witnesses, 28 who are not regular employees of any party, actually incurred and reasonably necessary in either, 29 or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the 30 defendant. 31 (2) (A) In determining whether the plaintiff obtains a more favorable judgment, the court 32 or arbitrator shall exclude the post offer costs. 33 (B) It is the intent of the Legislature in enacting subparagraph (A) to supersede the 34 holding in Encinitas Plaza Real v. Knight, 209 Cal.App.3d 996, that attorney's fees awarded to 35 the prevailing party were not costs for purposes of this section but were part of the judgment. 36 (d) If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more 37 favorable judgment or award in any action or proceeding other than an eminent domain action, 38 the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to 39 cover post offer costs of the services of expert witnesses, who are not regular employees of any 40 party, actually incurred and reasonably necessary in either, or both, preparation for trial or 41 arbitration, or during trial or arbitration, of the case by the plaintiff, in addition to plaintiff's 42 costs. 43 (e) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more 44 favorable judgment or award, the costs under this section, from the time of the offer, shall be 45 deducted from any damages awarded in favor of the plaintiff. If the costs awarded under this 46 section exceed the amount of the damages awarded to the plaintiff the net amount shall be 47 awarded to the defendant and judgment or award shall be entered accordingly. 48 (f) Police officers shall be deemed to be expert witnesses for the purposes of this section. 49 For purposes of this section, "plaintiff" includes a cross-complainant and "defendant" includes a 50 cross-defendant. Any judgment or award entered pursuant to this section shall be deemed to be a 51 compromise settlement. 52 (g) This chapter does not apply to either of the following: 53 (1) An offer that is made by a plaintiff in an eminent domain action. 54

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(2) Any enforcement action brought in the name of the people of the State of California 55 by the Attorney General, a district attorney, or a city attorney, acting as a public prosecutor. 56 (h) The costs for services of expert witnesses for trial under subdivisions (c) and (d) shall 57 not exceed those specified in Section 68092.5 of the Government Code. 58 (i) This section shall not apply to labor arbitrations filed pursuant to memoranda of 59 understanding under the Ralph C. Dills Act (Chapter 10.3 (commencing with Section 3512) of 60 Division 4 of Title 1 of the Government Code). 61

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem: The statute has been interpreted to allow for recovery of pre offer expert witness costs for the defendant but not the plaintiff. See Bates v. Presbyterian Intercommunity Hosp., Inc. (2012) 204 CA4th 210, 222, 138 CR 3d 680, 690-691; Adams v. Ford Motor Co. (2011) 199 CA4th 1475, 1487, 132 CR 424, 434 & fn. 12. There is no rational basis for allowing recovery of pre offer expert costs to a prevailing defendant, but not to a prevailing plaintiff. The present wording of the statute appears to allow recovery of such pre offer costs only by a defendant, because the word “post offer” is missing from that subsection. The fix is to simply add the word “post offer” to CCP 998 (c)(1), which applies to defendant offers, so that it mirrors the language in (d), which applies to plaintiff offers. The omission of the word “post offer” appears to be an unintended oversight, since the rest of the section refers only to recovery of post offer costs. However, as discussed above, the courts have interpreted the subsection as allowing recovery of both pre offer and post offer expert witness expenses for defendants. The Solution: This Resolution would make it clear that recoverable expert witness costs under CCP 998 are only post offer costs for both plaintiffs and defendants. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Russell S. Kohn, Esq., Kohn Law Office, 2170 S. El Camino Real, Suite 201, Oceanside, CA 92054 (760) 721-8182 RESPONSIBLE FLOOR DELEGATE: Russell S. Kohn, Esq.

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RESOLUTION 06-02-2015 DIGEST Civil Procedure: Complaints and Answers in Intervention Amends Code of Civil Procedure section 387 to permit an intervener seeking affirmative or defensive relief to identify its pleading as a “complaint-in-intervention” or “answer-in-intervention” respectively. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Code of Civil Procedure section 387 to permit an intervener seeking affirmative or defensive relief to identify its pleading as a “complaint-in-intervention” or “answer-in-intervention” respectively. This resolution should be approved in principle because it will eliminate confusion regarding the party with which the intervener aligns itself and provide more clarity in the pleadings. Code of Civil Procedure section 387 permits a third party to intervene in pending litigation by either joining the claims asserted by the plaintiff, join the defenses asserted by the defendant or take a position adverse to both plaintiff and defendant. (Code Civ. Proc., § 387, subd. (a).) Under current law, when the intervening party files the initial pleading to join the litigation, the intervener files a “Complaint in Intervention,” even if the intervener’s interests are more closely aligned with those of the defendant, regardless of whether the intervener seeks affirmative relief, asserts independent claims or includes both claims and defenses. Since an intervener’s pleadings are always entitled “complaint,” it creates confusion as to the posture of the intervener. An intervener should be permitted to file a “complaint-in-intervention,” “answer-in-intervention,” or other pleading identifying its position so all parties to the action will understand where the intervener’s interests lie. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Code of Civil Procedure section 387 to read as follows: §387 (a) Upon timely application, any person, who has an interest in the matter in litigation, or 1 in the success of either of the parties, or an interest against both, may intervene in the action or 2 proceeding. An intervention takes place when a third person is permitted to become a party to an 3 action or proceeding between other persons, either by joining the plaintiff in claiming what is 4 sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, 5 or by demanding anything adversely to both the plaintiff and the defendant, and is made by 6

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complaint, answer, or both, setting forth the grounds upon which the intervention rests, filed by 7 leave of the court and served upon the parties to the action or proceeding who have not appeared 8 in the same manner as upon the commencement of an original action, and upon the attorneys of 9 the parties who have appeared, or upon the party if he has appeared without an attorney, in the 10 manner provided for service of summons or in the manner provided by Chapter 5 (commencing 11 with Section 1010) Title 14 of Part 2. A party served with a complaint or answer in intervention 12 may within 30 days after service move, demur, or otherwise plead to the complaint or answer in 13 the same manner as to an original complaint or answer (b) If any provision of law confers an unconditional right to intervene or if the person 15 seeking intervention claims an interest relating to the property to transaction which is the subject 16 of the action and that person is so situated that the disposition of the action may as a practical 17 matter impair or impede that person's ability to protect that interest, unless that person's interest 18 is adequately represented by existing parties, the court shall, upon timely application, permit that 19 person to intervene. 20

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(Proposed new language underlined; language to be deleted stricken)

PROPONENT: Orange County Bar Association STATEMENT OF REASONS The Problem: Existing California law allows a third party to intervene into an action to (a) join in the claims asserted by the plaintiff, (b) join a defendant in an effort to defeat a complaint, or (c) demand anything adverse to both plaintiff and defendant. Code Civ. Proc. §387(a). However, regardless of whether the pleading is really a complaint seeking affirmative relief, an answer setting forth affirmative defenses, or includes both claims and defenses, the document filed is simply referred to as a “Complaint in Intervention.” Affirmative claims are asserted by a party through either a document bearing the title “complaint” or “cross-complaint.” See Code Civ. Proc. §411.10 and §428.10, et seq. Meanwhile, defenses are asserted through a document bearing the title “answer.” See Code Civ. Proc. §430.30(b). These documents are each viewed as separate pleadings allowed in civil actions (see Code Civ. Proc. §422.10) and governed by separate pleading rules. However, pleadings filed in intervention, both complaints and answers are confusingly titled a “Complaint in Intervention,” even if the document seeks no affirmative relief and merely asserts defenses to an asserted claim. See Drinkhouse v. Van Ness (1927) 202 Cal. 359, 371-372; Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal. App. 3d 873, 885. Making matters worse, when an intervenor seeks both affirmative relief and desires to assert defenses to claims, it can result in a party either (a) filing two separate complaints in intervention, one to assert affirmative claims and one to assert defenses, or (b) parties combining multiple pleadings into one document, which both asserts and defends against claims. See Marc Bellaire, Inc. v. Fleischman (1960) 185 Cal. App. 2d 591, 594; Traweek v. Draper (1956) 143 Cal. App. 2d 119, 120. Because a “Complaint in Intervention” can take either an affirmative or defensive role, it has led to confusion when it comes to reviewing court dockets, determining a party’s rights compared to other parties in the action, and even whether the action as a whole has been dismissed, where the plaintiff’s claims have been disposed of. See Klinghoffer v. Barasch (1970) 4 Cal. App. 3d 258; Bogardus v. Santa Ana Walnut Growers Assoc. (1940) 41 Cal. App. 2d 939, 951-952.

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The Solution: This resolution removes one obstacle to increased efficiency by clearly listing on an intervening pleading whether it asserts affirmative relief as a “Complaint,” or a defensive position as an “Answer.” Pleadings filed by non-intervening parties already clearly indicate whether a document is a “Complaint” or “Answer,” and there is no reason why pleadings filed by intervenors should be different. This resolution would allow parties to properly title their intervening pleadings as either a “Complaint in Intervention” or an “Answer in Intervention.” This change is in line with existing case law, which uses the term “Answer in Intervention” to refer to defensive pleadings filed by intervenors. See People v. Rath Packing Co. (1978) 85 Cal. App. 3d 308, 317; Socialist Workers etc. Committee v. Brown (1975) 53 Cal. App. 3d 879, 886. IMPACT STATEMENT This resolution does not affect any other law, statue or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Jason E. Turner, Esq. 315 West Third Street, Santa Ana, CA 92701Phone: (714) 543-0593, Fax: (714) 543-0598Email: Turner@cprlawoffice.com RESPONSIBLE FLOOR DELEGATE: Jason E. Turner

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RESOLUTION 06-03-2015 DIGEST Civil Procedure: Deadline for Filing Demurrer in Unlawful Detainer Actions Amends Code of Civil Procedure section 1167.4 to include a deadline for filing demurrers in unlawful detainer actions. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Code of Civil Procedure section 1167.4 to include a deadline for filing demurrers in unlawful detainer actions. This resolution should be approved in principle because eliminating a legally deficient complaint at the pleading stage in an unlawful detainer action, and on an expedited basis, would deter frivolous unlawful detainers and promote justice. Currently, defendants in unlawful detainer actions can challenge a complaint by filing a motion to quash and have the matter resolved on an expedited schedule. Because there is not a specific provision for demurrers in unlawful detainer actions, courts often set demurrer hearings on a normal law and motion schedule. Doing so is inconsistent with the policy of expediting unlawful detainer actions. This resolution merely allows defendants in unlawful detainer actions to challenge legally deficient complaints by demurring to them and having the hearing on an expedited schedule. It is unjust and inequitable to make a defendant go to trial on a complaint that fails as a matter of law. Further, to ensure an efficient resolution of unlawful detainer actions, this resolution requires that a demurrer be filed within the same time-constraints as those existing for motions to quash. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Code of Civil Procedure Code section 1167.4 to read as follows: §1167.4 Notwithstanding any other provision of law, in any action under this chapter: 1 (a) Where the defendant files a notice of motion as provided for in subdivision (a) of 2 Section 418.10, the time for making the motion shall be not less than three days nor more than 3 seven days after the filing of the notice. 4 (b) Where the defendant files a demurrer as provided for in subdivision (a) of Section 5 430.30, the time for making the motion shall be not less than three days nor more than seven 6 days after the filing of the notice. 7 (b)(c) The service and filing of a notice of motion under subdivision (a) or a demurrer 8 under subdivision (b) shall extend the defendant’s time to plead until five days after service upon 9 him of the written notice of entry of an order denying histhe motion, except that for good cause 10

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shown the court may extend the defendant’s time to plead for an additional period not exceeding 11 15 days. 12

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem: The unlawful detainer law neither explicitly includes nor explicitly excludes provision for demurrer to a complaint. Because the unlawful detainer law contains no specific prohibition against demurrers and there is no discussion of the time frame for demurrer in unlawful detainer proceedings, in some courts the defendant can file a demurrer and have it heard in ordinary course. This is in derogation of the legislative intent that unlawful detainer be a summary proceeding on tight time frames, and can be prejudicial to an unlawful detainer plaintiff who is not receiving rent. By comparison, the notice time frame for summary judgment motions under Code of Civil Procedure section 1170.7 is five days. Also, current subdivision (b) is in the masculine, so we propose making new subdivision (c) gender neutral. The Solution: This Resolution provides that if a defendant wishes to demur, the time frame for demurrer is the same as that for a motion to quash and render the section gender neutral. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Mary V.J. Cataldo, Esq., Procopio, Cory, Hargreaves & Savitch, LLP, 12544 High Bluff Drive, Ste. 300, San Diego, CA 92130; (760) 444-1773; mary.cataldo@procopio.com RESPONSIBLE FLOOR DELEGATE: Mary V.J. Cataldo, Esq.

COUNTERARGUMENTS TO RESOLUTION 06-03-2015 ORANGE COUNTY BAR ASSOCIATION The concept of providing a limited period of time for a tenant in an unlawful detainer action to have a demurrer heard has substantial merit. Many a tenant has delayed the unlawful detainer process by filing an unmeritorious demurrer and because the unlawful detainer statues to not provide for an expedited notice period a demurrer can often result in a delay of four to six weeks. Unfortunately, this resolution is not the solution. Code of Civil Procedure section 1167.4 governs motion to quash service of summons for lack of jurisdiction and motions to dismiss on

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the grounds of inconvenient forum. Motions to quash and/or dismiss are relatively rare in the unlawful detainer process, need little opposition, and require little in the way of research for the court. Most courts can accommodate such hearings in the time frame required by Section 1167.4. However, with the budget crisis many courts would be extremely hard pressed to be able to schedule a demurrer hearing within three to seven days of its filing. In Los Angeles County there were twenty-five courtrooms hearing unlawful detainer actions but now there are but five. These five courtrooms are extremely busy and the backlog is tremendous. It would be virtually impossible for one of these courts to schedule a demurrer hearing within three to seven days. Although most demurrers arising in a residential unlawful detainer action need very little, if any, written opposition some commercial unlawful detainers involve complicated issues requiring substantial written opposition and court research. The resolution as written would not provide plaintiff with an opportunity to prepare written opposition. The proposed changes to subdivision (c) requiring service upon a defendant of notice that his/her demurrer has been overruled would effectively provide a defendant with substantially more time then the courts generally provide after overruling a demurrer. The objectives of the proponent could be achieved by proposing a resolution similar to Code of Civil Procedure section 1170.7 which governs summary judgments in unlawful detainer actions. A resolution which provides that “a demurrer can be made within the time to plead upon the giving of five days’ notice” would avoid causing issues with the court’s schedule, provide the opportunity to prepare written opposition, and would not lengthen the time for an Answer to be filed after a demurrer is overruled.

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RESOLUTION 06-04-2015 DIGEST Civil Procedure: Summary Judgment Hearings Held at Least 30 Days Before Initial Trial Date Amends Code of Civil Procedure section 437c to require that motions for summary judgment or adjudication be heard no later than 30 days before the date first set for trial. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Code of Civil Procedure section 437c to require that motions for summary judgment or adjudication be heard no later than 30 days before the date first set for trial. The resolution should be disapproved because the existing deadlines for filing and hearing such motions does not appear to create any problem requiring amendment. There does not appear to be any correlation between the discovery deadlines referenced in resolution’s statement of reasons, and the deadlines for summary judgment or adjudication motions. Moreover, such motions typically are brought after discovery is nearlycompleted—a notion already recognized in subdivision (h), which provides for denial or continuance of motions for summary judgment or adjudication specifically because discovery has not yet been completed. Finally, as drafted, the resolution would not provide a court with any discretion to extend the hearing deadline in the event trial is continued, discretion the court retains in the area of discovery cutoffs. (See Code Civ. Proc., § 2014.050.) TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Code of Civil Procedure section 437c to read as follows: §437c. Summary Judgment (a) Any party may move for summary judgment in any action or proceeding if it is 1 contended that the action has no merit or that there is no defense to the action or proceeding. The 2 motion may be made at any time after 60 days have elapsed since the general appearance in the 3 action or proceeding of each party against whom the motion is directed or at any earlier time 4 after the general appearance that the court, with or without notice and upon good cause shown, 5 may direct. Notice of the motion and supporting papers shall be served on all other parties to the 6 action at least 75 days before the time appointed for hearing. However, if the notice is served by 7 mail, the required 75-day period of notice shall be increased by five days if the place of address 8 is within the State of California, 10 days if the place of address is outside the State of California 9 but within the United States, and 20 days if the place of address is outside the United States, and 10 if the notice is served by facsimile transmission, Express Mail, or another method of delivery 11 providing for overnight delivery, the required 75-day period of notice shall be increased by two 12

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court days. The motion shall be heard no later than 30 days before the date initially set for the of 13 trial of this action, unless the court for good cause orders otherwise. The filing of the motion 14 shall not extend the time within which a party must otherwise file a responsive pleading. 15 (b) (1) The motion shall be supported by affidavits, declarations, admissions, answers to 16 interrogatories, depositions, and matters of which judicial notice shall or may be taken. The 17 supporting papers shall include a separate statement setting forth plainly and concisely all 18 material facts which the moving party contends are undisputed. Each of the material facts stated 19 shall be followed by a reference to the supporting evidence. The failure to comply with this 20 requirement of a separate statement may in the court's discretion constitute a sufficient ground 21 for denial of the motion. 22 (2) Any opposition to the motion shall be served and filed not less than 14 days preceding 23 the noticed or continued date of hearing, unless the court for good cause orders otherwise. The 24 opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to 25 interrogatories, depositions, and matters of which judicial notice shall or may be taken. 26 (3) The opposition papers shall include a separate statement that responds to each of the 27 material facts contended by the moving party to be undisputed, indicating whether the opposing 28 party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly 29 and concisely any other material facts that the opposing party contends are disputed. Each 30 material fact contended by the opposing party to be disputed shall be followed by a reference to 31 the supporting evidence. Failure to comply with this requirement of a separate statement may 32 constitute a sufficient ground, in the court's discretion, for granting the motion. 33 (4) Any reply to the opposition shall be served and filed by the moving party not less than 34 five days preceding the noticed or continued date of hearing, unless the court for good cause 35 orders otherwise. 36 (5) Evidentiary objections not made at the hearing shall be deemed waived. 37 (6) Except for subdivision (c) of Section 1005 relating to the method of service of 38 opposition and reply papers, Sections 1005 and 1013, extending the time within which a right 39 may be exercised or an act may be done, do not apply to this section. 40 (7) Any incorporation by reference of matter in the court's file shall set forth with 41 specificity the exact matter to which reference is being made and shall not incorporate the entire 42 file. 43 (c) The motion for summary judgment shall be granted if all the papers submitted show 44 that there is no triable issue as to any material fact and that the moving party is entitled to a 45 judgment as a matter of law. In determining whether the papers show that there is no triable issue 46 as to any material fact the court shall consider all of the evidence set forth in the papers, except 47 that to which objections have been made and sustained by the court, and all inferences 48 reasonably deducible from the evidence, except summary judgment may not be granted by the 49 court based on inferences reasonably deducible from the evidence, if contradicted by other 50 inferences or evidence, which raise a triable issue as to any material fact. 51 (d) Supporting and opposing affidavits or declarations shall be made by any person on 52 personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the 53 affiant is competent to testify to the matters stated in the affidavits or declarations. Any 54 objections based on the failure to comply with the requirements of this subdivision shall be made 55 at the hearing or shall be deemed waived. 56 (e) If a party is otherwise entitled to a summary judgment pursuant to this section, 57 summary judgment may not be denied on grounds of credibility or for want of cross-examination 58

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of witnesses furnishing affidavits or declarations in support of the summary judgment, except 59 that summary judgment may be denied in the discretion of the court, where the only proof of a 60 material fact offered in support of the summary judgment is an affidavit or declaration made by 61 an individual who was the sole witness to that fact; or where a material fact is an individual's 62 state of mind, or lack thereof, and that fact is sought to be established solely by the individual's 63 affirmation thereof. 64 (f) (1) A party may move for summary adjudication as to one or more causes of action 65 within an action, one or more affirmative defenses, one or more claims for damages, or one or 66 more issues of duty, if that party contends that the cause of action has no merit or that there is no 67 affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of 68 action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of 69 the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff 70 or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes 71 of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. 72 (2) A motion for summary adjudication may be made by itself or as an alternative to a 73 motion for summary judgment and shall proceed in all procedural respects as a motion for 74 summary judgment. However, a party may not move for summary judgment based on issues 75 asserted in a prior motion for summary adjudication and denied by the court, unless that party 76 establishes to the satisfaction of the court, newly discovered facts or circumstances or a change 77 of law supporting the issues reasserted in the summary judgment motion. 78 (g) Upon the denial of a motion for summary judgment, on the ground that there is a 79 triable issue as to one or more material facts, the court shall, by written or oral order, specify one 80 or more material facts raised by the motion as to which the court has determined there exists a 81 triable controversy. This determination shall specifically refer to the evidence proffered in 82 support of and in opposition to the motion which indicates that a triable controversy exists. Upon 83 the grant of a motion for summary judgment, on the ground that there is no triable issue of 84 material fact, the court shall, by written or oral order, specify the reasons for its determination. 85 The order shall specifically refer to the evidence proffered in support of, and if applicable in 86 opposition to, the motion which indicates that no triable issue exists. The court shall also state its 87 reasons for any other determination. The court shall record its determination by court reporter or 88 written order. 89 (h) If it appears from the affidavits submitted in opposition to a motion for summary 90 judgment or summary adjudication or both that facts essential to justify opposition may exist but 91 cannot, for reasons stated, then be presented, the court shall deny the motion, or order a 92 continuance to permit affidavits to be obtained or discovery to be had or may make any other 93 order as may be just. The application to continue the motion to obtain necessary discovery may 94 also be made by ex parte motion at any time on or before the date the opposition response to the 95 motion is due. 96 (i) If, after granting a continuance to allow specified additional discovery, the court 97 determines that the party seeking summary judgment has unreasonably failed to allow the 98 discovery to be conducted, the court shall grant a continuance to permit the discovery to go 99 forward or deny the motion for summary judgment or summary adjudication. This section does 100 not affect or limit the ability of any party to compel discovery under the Civil Discovery Act 101 (Title 4 (commencing with Section 2016.010) of Part 4). 102 (j) If the court determines at any time that any of the affidavits are presented in bad faith 103 or solely for purposes of delay, the court shall order the party presenting the affidavits to pay the 104

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other party the amount of the reasonable expenses which the filing of the affidavits caused the 105 other party to incur. Sanctions may not be imposed pursuant to this subdivision, except on notice 106 contained in a party's papers, or on the court's own noticed motion, and after an opportunity to be 107 heard. 108 (k) Except when a separate judgment may properly be awarded in the action, no final 109 judgment may be entered on a motion for summary judgment prior to the termination of the 110 action, but the final judgment shall, in addition to any matters determined in the action, award 111 judgment as established by the summary proceeding herein provided for. 112 (l) In actions which arise out of an injury to the person or to property, if a motion for 113 summary judgment was granted on the basis that the defendant was without fault, no other 114 defendant during trial, over plaintiff's objection, may attempt to attribute fault to or comment on 115 the absence or involvement of the defendant who was granted the motion. 116 (m) (1) A summary judgment entered under this section is an appealable judgment as in 117 other cases. Upon entry of any order pursuant to this section, except the entry of summary 118 judgment, a party may, within 20 days after service upon him or her of a written notice of entry 119 of the order, petition an appropriate reviewing court for a peremptory writ. If the notice is served 120 by mail, the initial period within which to file the petition shall be increased by five days if the 121 place of address is within the State of California, 10 days if the place of address is outside the 122 State of California but within the United States, and 20 days if the place of address is outside the 123 United States. If the notice is served by facsimile transmission, Express Mail, or another method 124 of delivery providing for overnight delivery, the initial period within which to file the petition 125 shall be increased by two court days. The superior court may, for good cause, and prior to the 126 expiration of the initial period, extend the time for one additional period not to exceed 10 days. 127 (2) Before a reviewing court affirms an order granting summary judgment or summary 128 adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the 129 parties an opportunity to present their views on the issue by submitting supplemental briefs. The 130 supplemental briefing may include an argument that additional evidence relating to that ground 131 exists, but that the party has not had an adequate opportunity to present the evidence or to 132 conduct discovery on the issue. The court may reverse or remand based upon the supplemental 133 briefing to allow the parties to present additional evidence or to conduct discovery on the issue. 134 If the court fails to allow supplemental briefing, a rehearing shall be ordered upon timely petition 135 of any party. 136 (n) (1) If a motion for summary adjudication is granted, at the trial of the action, the 137 cause or causes of action within the action, affirmative defense or defenses, claim for damages, 138 or issue or issues of duty as to the motion which has been granted shall be deemed to be 139 established and the action shall proceed as to the cause or causes of action, affirmative defense or 140 defenses, claim for damages, or issue or issues of duty remaining. 141 (2) In the trial of the action, the fact that a motion for summary adjudication is granted as 142 to one or more causes of action, affirmative defenses, claims for damages, or issues of duty 143 within the action shall not operate to bar any cause of action, affirmative defense, claim for 144 damages, or issue of duty as to which summary adjudication was either not sought or denied. 145 (3) In the trial of an action, neither a party, nor a witness, nor the court shall comment 146 upon the grant or denial of a motion for summary adjudication to a jury. 147 (o) A cause of action has no merit if either of the following exists: 148 (1) One or more of the elements of the cause of action cannot be separately established, 149 even if that element is separately pleaded. 150

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(2) A defendant establishes an affirmative defense to that cause of action. 151 (p) For purposes of motions for summary judgment and summary adjudication: 152 (1) A plaintiff or cross-complainant has met his or her burden of showing that there is no 153 defense to a cause of action if that party has proved each element of the cause of action entitling 154 the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met 155 that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of 156 one or more material facts exists as to that cause of action or a defense thereto. The defendant or 157 cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a 158 triable issue of material fact exists but, instead, shall set forth the specific facts showing that a 159 triable issue of material fact exists as to that cause of action or a defense thereto. 160 (2) A defendant or cross-defendant has met his or her burden of showing that a cause of 161 action has no merit if that party has shown that one or more elements of the cause of action, even 162 if not separately pleaded, cannot be established, or that there is a complete defense to that cause 163 of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the 164 plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as 165 to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon 166 the mere allegations or denials of its pleadings to show that a triable issue of material fact exists 167 but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as 168 to that cause of action or a defense thereto. 169 (q) This section does not extend the period for trial provided by Section 1170.5. 170 (r) Subdivisions (a) and (b) do not apply to actions brought pursuant to Chapter 4 171 (commencing with Section 1159) of Title 3 of Part 3. 172 (s) For the purposes of this section, a change in law does not include a later enacted 173 statute without retroactive application. 174 (t) This section shall become operative on January 1, 2015. 175

(Proposed new language underlined; language to be deleted stricken) PROPONENT: The Bar Association of San Francisco STATEMENT OF REASONS The Problem: This proposed resolution corrects a discrepancy between Code of Civil Procedure section 2024.020, subdivision (a), and Code of Civil Procedure section 437c, subdivision (a). The former section, concerning the cutoff of discovery proceedings, requires the cutoff of discovery on or before 30 days before the date initially set for the trial of the action, and discovery motions to be heard on or before 15 days before the date initially set for the trial of the action. There is no similar provision in Code of Civil Procedure section 437c, subdivision (a), related to summary judgment motions. This produces the odd result that if a trial date is continued, discovery (sans an agreement between the parties or for good cause as determined by the court) would have been cut off based on the initial trial date, while a party could still bring a motion for summary judgment to be heard up to 30 days before the actual trial date. This resolution attempts to correct this inconsistency. Unless the parties agree otherwise, or the court allows for good cause, the cutoff date for discovery and discovery related motions in a civil action is based on the initial date set for trial, while a motion for summary judgment may be heard up to 30 days before the actual trial date.

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The Solution: This resolution corrects the inconsistency between the deadlines for discovery and discovery motions and the deadline for a hearing on a motion for summary judgment or summary adjudication. IMPACT STATEMENT The proposed resolution does not affect any other law, statute, or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Matthew A. Mallet, Of Counsel, Law Offices of Kirk B. Freeman, 256 Sutter Street, Sixth Floor, San Francisco, CA 94108, (415)398-1082, matthew@kbflaw.com RESPONSIBLE FLOOR DELEGATE: Matthew Mallet

SECTION COMMENTS TO RESOLUTION 06-04-2015 STATE BAR OF CALIFORNIA’S COMMITTEE ON ADMINISTRATION OF JUSTICE DISAPPROVE

According to the Statement of Reasons, this Resolution “corrects the inconsistency between the deadlines for discovery and discovery motions and the deadline for a hearing on a motion for summary judgment or summary adjudication.” The State Bar’s Committee on Administration of Justice (CAJ) does not view having different cutoff dates for discovery, under Code of Civil Procedure section 2024.020, and for a hearing on motions for summary judgment and summary adjudication, under Code of Civil Procedure section 437c, as an “inconsistency.” These are different Code sections that function in different ways for different reasons.

It is true that the discovery cutoff is based on the date “initially” set for trial and the cutoff for a motion for summary judgment is based on the actual trial date, whether initial or continued. However, trials are often continued so the parties can complete discovery. In addition, discovery is sometimes informally stayed so the parties can avoid expenses and costs while attempting to reach a settlement. More often than not, the parties will agree to keep discovery open if a trial date is continued. If the parties are unable to reach such an agreement, Code of Civil Procedure 2024.050 provides for a motion to reopen discovery after a new trial date has been set.

CAJ believes the existing statutes strike the proper balance. Discovery should be completed before a hearing on a motion for summary judgment or summary adjudication. Parties should not be prevented from filing a motion for summary judgment or summary adjudication based upon new evidence obtained after the continuance of an initial trial date. No

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party is disadvantaged by having the hearing scheduled after what would have been the close of discovery based on the initial trial date, as each party must rely on the same set of evidence produced during discovery to move for or oppose summary judgment or summary adjudication.

Moreover, courts are very backed up these days and the time frame for filing a motion

under Code of Civil Procedure section 437c is significant. Even when a party does substantial advanced planning to serve appropriate discovery in a timely manner, it can take a long time to get a hearing date to compel discovery, if a motion to compel becomes necessary. If this Resolution were implemented, the parties would be barred from filing a motion for summary judgment or summary adjudication after a trial continuance, unless the court for good cause orders otherwise, notwithstanding an agreement to keep discovery open. Disclaimer

This position is only that of the State Bar of California’s Committee on Administration of Justice. This position has not been adopted by the State Bar’s Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Committee activities relating to this position are funded from voluntary sources.

COUNTERARGUMENTS TO RESOLUTION 06-04-2015 BAR ASSOCIATION OF NORTHERN SAN DIEGO COUNTY While we acknowledge the discrepancy between Code of Civil Procedure section 437c and Section 2024.020, we believe the better change would be to correct Section 2024.020 to allow for discovery up to 30 days before the actual trial date. Trials are frequently continued for various reasons, such as ongoing settlement negotiations, substitution from a pro per to an attorney or substitution to a new attorney. Motions for Summary Judgment, although laborious, are necessary from a judicial efficiency standpoint. If a party has a meritorious summary judgment motion that would dispose of a case, why would we try to inhibit the ability to file that motion by moving back the cutoff date to the original trial date? Disposing of cases by summary judgment promotes judicial efficiency, and in the long run, is a cost savings for the client over going to trial. We should not make that process more difficult by moving back the deadline to the original trial date and then requiring parties to go in ex parte and show good cause to move the deadline for the hearing. Rather, the more effective solution would be to leave 437c as is and offer a resolution to amend Section 2024.020 to allow discovery up to 30 days prior to the actual trial date. ORANGE COUNTY BAR ASSOCIATION This is a resolution in search of a problem. There is no reason why the right to seek a summary judgment should be tied to the initial trial date. Generally, summary judgment motions are brought after virtually all discovery has been completed. It is often not until discovery has been

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completed that a party can muster the required evidence to establish that one or more causes of action or one or more affirmative defenses have no merit. The fact that a party has not completed discovery can serve as a grounds for the court to deny or to continue a summary judgment motion. (Code Civ. Proc. §437c sub. (h) (i).) Often trial dates are assigned very early in a case. Some courts even assign a trial date the day the complaint is filed. Many a trial has been continued due to the inability of the parties to complete discovery. If this resolution were adopted a party could sabotage the other party’s opportunity to have a matter determined by summary judgment by simply refusing to provide timely and full and complete responses to discovery. The resolution as proposed does not provide any exceptions to the requirement that the motion be brought thirty days prior to the initial trial date. Summary judgment motions serve judicial economy in that cases where there is no triable issue with respect to an entire complaint, a cause of action or an affirmative defense can be resolved without wasting the court resources conducting a trial. The proponent argues that it is the initial trial date which governs when discovery must be completed. The proponent fails to recognize that Section 2014.050 provides the court may grant leave to complete discovery proceedings or have a motion heard closer to the initial trial date, or to reopen discovery after a new trial date has been set. SACRAMENTO COUNTY BAR ASSOCIATION Motions for summary judgment (“MSJs”) are not the same as discovery motions, and there is no logical reason for strictly tying the hearing deadline for an MSJ to the hearing deadline for discovery motions. Discovery motions are made to ensure that all discoverable information is properly exchanged with adequate time for using that information in preparation of trial. MSJs are dispositive motions made to prevent the waste of judicial resources for a trial of unmeritorious claims or defenses. Both plaintiffs and defendants can file MSJs. If a complaint or defense lacks merit, then the court, and the parties, should have the opportunity to dispose of the case before trial through an MSJ, even if the first trial date was continued. Even though MSJs are costly, they are much less expensive than a full trial.

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RESOLUTION 06-05-2015 DIGEST Civil Procedure: Requirement that Entities Be Represented by Legal Counsel Adds Code of Civil Procedure section 283.5 to require that entities be represented by legal counsel in all civil proceedings, other than small claims and specified probate matters. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution adds Code of Civil Procedure section 283.5 to require that entities be represented by legal counsel in all civil proceedings, other than small claims and specified probate matters. This resolution should be approved in principle because 1) small claims proceedings do not allow lawyers; 2) in probate proceedings a fiduciary is not considered to be representing the interest of others, but performing the duties of his/her office; and 3) in all other cases, entities and estates must be represented by legal counsel. The resolution does not change but clarifies existing law and practices. In probate proceedings the fiduciary is acting within the capacity of his/her office Unlike in civil litigation, the designated fiduciary is the designated fiduciary is required to protect the interest of the protected party, not necessarily the protected party’s stated interest, an attorney would be necessary in the latter situation. The probate court judge retains the discretion, in any case, to require representation by legal counsel. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to add California Code of Civil Procedure section 283.5 to read as follows: §283.5 (a) Except as provided in Code of Civil Procedure section 116.530 and subsection (b) of 1 this section, the following entities and representatives, whether domestic or foreign, must be 2 represented by an attorney at all stages of any civil proceeding: 3 (1) Corporations; 4 (2) Limited Liability Companies; 5 (3) Partnerships, including general partnership, limited partnerships and limited liability 6 partnerships; 7 (4) Unincorporated Associations, including business trusts; 8 (5) Guardian 9 (6) Conservator 10 (7) Trustee 11 (8) Personal Representative 12

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(9) Probate Fiduciary 13 (10) Guardian ad Litem 14 (b) In probate proceedings, the following representative may appear in pro per unless 15 otherwise ordered by the court: 16 (1) Guardian 17 (2) Conservator 18 (3) Trustee 19 (4) Personal Representative 20 (5) Probate Fiduciary 21 (6) Guardian ad Litem. 22

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem: There is confusion and uncertainty as to when certain entities and representative may represent themselves in civil proceedings. For example, the Substitution of Attorney-Civil Form provides that Guardians, Conservators, Trustees, Personal Representatives, Probate Fiduciaries, Corporations, Guardians ad litem and Unincorporated Associations may not act as their own attorney. However, the form is silent as to other entities. For the most part, this decree is based on case law and there is no statutory authority concerning representation of entities outside of the small claims context. This leads to confusion and inconsistent rulings by courts when non-specified business entities seek to represent themselves, such as limited liability companies and various forms of partnerships. Since a corporation has the capacity to sue and defend and is not a natural person, it can only appear through an attorney in civil cases. (Merco Const. Engineers, Inc. v. Mun. Ct. (Sully-Miller Contracting Co.) (1978) 21 Cal.2d 724, 731.) Case law has also held that unincorporated association is more like a corporation than an individual since it has the capacity to sue and be sued in its name, and therefore can appear in court only through a licensed attorney. (Clean Air Transport Systems v. San Mateo County Transit Dist. (1988) 198 Cal.App.3d 576, 578-579.) There is a division in the courts on whether LLCs and partnerships can represent themselves in civil proceedings. Since LLCs and partnerships likewise have the capacity to sue and be sued in the entity’s name (see Corp. Code §17003(b) and Code of Civil Procedure §369.5(a)), it is only logical that the requirement that these entities also be represented by counsel be extended. The Solution: This clarifies that all representatives already listed in the Substitution of Attorney-Civil form, plus all entities must be represented by counsel at all stages of civil proceedings except for small claims hearings and probate proceedings. Certain representative capacities in probate proceedings were intentionally carved out because those representatives traditional represent themselves in the probate court. However, those representatives should not be allowed to appear in a representative capacity in other civil proceedings. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule.

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CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Gayle Mayfield-Venieris, Esq., Mayfield Bustarde, LLP, 462 Stevens Ave., Suite 303, Solana Beach, CA 92075, (858) 793-8090 RESPONSIBLE FLOOR DELEGATE: Melissa L. Bustarde, Esq.

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RESOLUTION 06-06-2015

DIGEST Civil Procedure: Providing Notice to Deceased Consumer of Subpoenaed Records Amends Code of Civil Procedure section 1985.3 to provide a mechanism to serve a Notice to Consumer when the consumer is deceased. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: Similar to Resolution 05-05-2014, which was disapproved. Reasons: This resolution amends Code of Civil Procedure section 1985.3 to provide a mechanism to serve a Notice to Consumer when the consumer is deceased. This resolution should be disapproved because current statutory mechanisms already provide direction as to the proper person to serve in the event a deceased consumer’s records are subpoenaed.

While there is a great public need for guidance and uniformity in handling the records of a decedent, the proponent incorrectly argues that there are no current provisions in the Code of Civil Procedure giving clear guidance to a subpoenaing party on how to serve a deceased consumer. However, statutes allowing a decedent’s estate to commence a cause of action or proceeding make clear that the personal representative of the decedent’s estate, or if none, the successor in interest, is the appropriate individual to commence such actions and/or proceedings on the decedent’s behalf. (Code Civ. Proc., §§ 377.30-377.35.) Likewise, should the subpoenaing party need to serve a Notice to Consumer for the deceased consumer’s records, this notice should be served on the personal representative of the decedent’s estate, or if none, the decedent’s successor in interest. It is either the personal representative or the successor in interest who would be responsible for making any objection or initiating any proceeding to quash the subpoena on behalf of the deceased consumer, using the mechanisms provided in section 1985.3. Accordingly, it is the personal representative or, alternatively, successor in interest, who must be served with any appropriate Notice to Consumer. The existing mechanisms in the Code of Civil Procedure can and should be utilized to effectuate notice when the records of a deceased consumer are subpoenaed.

TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend Code of Civil Procedure section 1985.3 to read as follows: §1985.3 (a) For purposes of this section, the following definitions apply: 1 (1) “Personal records” means the original, any copy of books, documents, other writings, 2 or electronically stored information pertaining to a consumer and which are maintained by any 3

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“witness” which is a physician, dentist, ophthalmologist, optometrist, chiropractor, physical 4 therapist, acupuncturist, podiatrist, veterinarian, veterinary hospital, veterinary clinic, 5 pharmacist, pharmacy, hospital, medical center, clinic, radiology or MRI center, clinic or 6 diagnostic laboratory, state or national bank, state or federal association (as defined in Section 7 5102 of the Financial Code), state or federal credit union, trust company, anyone authorized by 8 this state to make or arrange loans that are secured by real property, security brokerage firm, 9 insurance company, title insurance company, underwritten title company, escrow agent licensed 10 pursuant to Division 6 (commencing with Section 17000) of the Financial Code or exempt from 11 licensure pursuant to Section 17006 of the Financial Code, attorney, accountant, institution of the 12 Farm Credit System, as specified in Section 2002 of Title 12 of the United States Code, or 13 telephone corporation which is a public utility, as defined in Section 216 of the Public Utilities 14 Code, or psychotherapist, as defined in Section 1010 of the Evidence Code, or a private or public 15 preschool, elementary school, secondary school, or postsecondary school as described in Section 16 76244 of the Education Code. 17 (2) "Consumer" means any individual, partnership of five or fewer persons, association, 18 or trust which has transacted business with, or has used the services of, the witness or for whom 19 the witness has acted as agent or fiduciary. 20 (3) "Subpoenaing party" means the person or persons causing a subpoena duces tecum to 21 be issued or served in connection with any civil action or proceeding pursuant to this code, but 22 shall not include the state or local agencies described in Section 7465 of the Government Code, 23 or any entity provided for under Article VI of the California Constitution in any proceeding 24 maintained before an adjudicative body of that entity pursuant to Chapter 4 (commencing with 25 Section 6000) of Division 3 of the Business and Professions Code. 26 (4) "Deposition officer" means a person who meets the qualifications specified in Section 27 2020.420. 28 (b) Prior to the date called for in the subpoena duces tecum for the production of personal 29 records, the subpoenaing party shall serve or cause to be served on the consumer whose records 30 are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of 31 the subpoena, if any, and of the notice described in subdivision (e), and proof of service as 32 indicated in paragraph (1) of subdivision (c). This service shall be made as follows: 33 (1) To the consumer personally, or at his or her last known address, or in accordance with 34 Chapter 5 (commencing with Section 1010) of Title 14 of Part 3, or, if he or she is a party, to his 35 or her attorney of record. If the consumer is a minor, service shall be made on the minor's parent, 36 guardian, conservator, or similar fiduciary, or if one of them cannot be located with reasonable 37 diligence, then service shall be made on any person having the care or control of the minor or 38 with whom the minor resides or by whom the minor is employed, and on the minor if the minor 39 is at least 12 years of age. If the consumer is deceased, service shall be made on a court-40 appointed personal representative of the consumer, or if none, the successor of the decedent, as 41 defined in Section 13006 of the Probate Code. 42 (2) Not less than 10 days prior to the date for production specified in the subpoena duces 43 tecum, plus the additional time provided by Section 1013 if service is by mail. 44 (3) At least five days prior to service upon the custodian of the records, plus the 45 additional time provided by Section 1013 if service is by mail. 46 (c) Prior to the production of the records, the subpoenaing party shall do either of the 47 following: 48

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(1) Serve or cause to be served upon the witness a proof of personal service or of service 49 by mail attesting to compliance with subdivision (b). 50 (2) Furnish the witness a written authorization to release the records signed by the 51 consumer or by his or her attorney of record. The witness may presume that any attorney 52 purporting to sign the authorization on behalf of the consumer acted with the consent of the 53 consumer, and that any objection to release of records is waived. 54 (d) A subpoena duces tecum for the production of personal records shall be served in 55 sufficient time to allow the witness a reasonable time, as provided in Section 2020.410, to locate 56 and produce the records or copies thereof. 57 (e) Every copy of the subpoena duces tecum and affidavit, if any, served on a consumer 58 or his or her attorney in accordance with subdivision (b) shall be accompanied by a notice, in a 59 typeface designed to call attention to the notice, indicating that (1) records about the consumer 60 are being sought from the witness named on the subpoena; (2) if the consumer objects to the 61 witness furnishing the records to the party seeking the records, the consumer must file papers 62 with the court or serve a written objection as provided in subdivision (g) prior to the date 63 specified for production on the subpoena; and (3) if the party who is seeking the records will not 64 agree in writing to cancel or limit the subpoena, an attorney should be consulted about the 65 consumer's interest in protecting his or her rights of privacy. If a notice of taking of deposition is 66 also served, that other notice may be set forth in a single document with the notice required by 67 this subdivision. 68 (f) A subpoena duces tecum for personal records maintained by a telephone corporation 69 which is a public utility, as defined in Section 216 of the Public Utilities Code, shall not be valid 70 or effective unless it includes a consent to release, signed by the consumer whose records are 71 requested, as required by Section 2891 of the Public Utilities Code. 72 (g) Any consumer whose personal records are sought by a subpoena duces tecum and 73 who is a party to the civil action in which this subpoena duces tecum is served may, prior to the 74 date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces 75 tecum. Notice of the bringing of that motion shall be given to the witness and deposition officer 76 at least five days prior to production. The failure to provide notice to the deposition officer shall 77 not invalidate the motion to quash or modify the subpoena duces tecum but may be raised by the 78 deposition officer as an affirmative defense in any action for liability for improper release of 79 records. Any other consumer or nonparty whose personal records are sought by a subpoena 80 duces tecum may, prior to the date of production, serve on the subpoenaing party, the witness, 81 and the deposition officer, a written objection that cites the specific grounds on which production 82 of the personal records should be prohibited. No witness or deposition officer shall be required to 83 produce personal records after receipt of notice that the motion has been brought by a consumer, 84 or after receipt of a written objection from a nonparty consumer, except upon order of the court 85 in which the action is pending or by agreement of the parties, witnesses, and consumers affected. 86 The party requesting a consumer's personal records may bring a motion under Section 1987.1 to 87 enforce the subpoena within 20 days of service of the written objection. The motion shall be 88 accompanied by a declaration showing a reasonable and good faith attempt at informal resolution 89 of the dispute between the party requesting the personal records and the consumer or the 90 consumer's attorney. 91 (h) Upon good cause shown and provided that the rights of witnesses and consumers are 92 preserved, a subpoenaing party shall be entitled to obtain an order shortening the time for service 93

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of a subpoena duces tecum or waiving the requirements of subdivision (b) where due diligence 94 by the subpoenaing party has been shown. 95 (i) Nothing contained in this section shall be construed to apply to any subpoena duces 96 tecum which does not request the records of any particular consumer or consumers and which 97 requires a custodian of records to delete all information which would in any way identify any 98 consumer whose records are to be produced. 99 (j) This section shall not apply to proceedings conducted under Division 1 (commencing 100 with Section 50), Division 4 (commencing with Section 3200), Division 4.5 (commencing with 101 Section 6100), or Division 4.7 (commencing with Section 6200), of the Labor Code. 102 (k) Failure to comply with this section shall be sufficient basis for the witness to refuse to 103 produce the personal records sought by a subpoena duces tecum. 104 (l) If the subpoenaing party is the consumer, and the consumer is the only subject of the 105 subpoenaed records, notice to the consumer, and delivery of the other documents specified in 106 subdivision (b) to the consumer, is not required under this section. 107

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Sacramento County Bar Association STATEMENT OF REASONS The Problem

: There is no provision in the Code of Civil Procedure giving guidance to a subpoenaing party on how to serve a deceased consumer. This leaves the subpoenaing party no clear course of action to ensure effective notice on the consumer whose records are being sought, and might have had, and might continue to have, a need to protect his or her privacy or other rights. The subpoenaing party might have the wherewithal to search for heirs or successors of the deceased consumer, but even if heirs or successors are found, or a probate proceeding opened, the existing section does not provide that effective service can be made on either.

A similar resolution was disapproved last year under the argument that Code of Civil Procedure sections 377.30-377.35 already provide effective mechanisms for handling this situation. However, this is simply not the case as these sections only apply to “an action or proceeding the decedent was entitled to commence, and to the continuation of an action or proceeding commenced by the decedent…” Thus, the sections do not apply to actions against the decedent or the decedent’s estate, or efforts to discover the records of a decedent. Further, these sections do not clearly relate to the required Notice to Consumer. The effect is that neither financial institutions nor medical facilities have clear guidance on when they may release records of a deceased individual, and as a result, they all follow different procedures. There is a great public need for guidance and uniformity in handling the records of a decedent. The Legislature enacted the Notice to Consumer to protect individuals, including decedents. In fact, the HIPAA Privacy Rule restricts access to a decedent’s medical records for up to 50 years after the decedent’s date of death. See 45 CFR 160.103, paragraph (2)(iv) for the definition of “protected health information.” Therefore, the Notice to Consumer must be properly served on the appropriate representative of the decedent in order to maintain that protection.

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The Solution

: This change makes it clear that service on a deceased consumer must be made on a duly-appointed personal representative of the decedent, or if none, on the decedent’s successor in interest.

Similar to Resolution 05-05-2014, which was disapproved for the reasons explained above. Not comparable to Resolution 03-12-2008, which attempted to expand the definition of “consumers” to include corporations and partnerships with more than five persons, which was disapproved, and Resolutions 11-09-2005 and 03-05-2008, which sought to require a Notice to Consumer for all civil document requests under the Discovery Act, not just subpoenas, which were withdrawn. IMPACT STATEMENT The proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Stephanie Poston, Law Offices of Jerilyn Paik, 555 University Ave., Suite 235, Sacramento, CA 95825, (916) 568-1222, stephanie@jplawoffice.com RESPONSIBLE FLOOR DELEGATE: Stephanie Poston

SECTION COMMENTS TO RESOLUTION 06-06-2015 TRUSTS AND ESTATES SECTION OF THE STATE BAR OF CALIFORNIA OPPOSE California Code of Civil Procedure (“CCP”) § 1985.3 is intended to give the consumer whose personal information is sought to be disclosed in a subpoena a reasonable opportunity to object to the disclosure. Often, the objection is made on grounds that disclosure would violate the consumer’s right of privacy. If it is not possible to serve the notice on the consumer directly, requires service on the consumer’s legal representative, who could then exercise the consumer’s rights on his/her behalf.1

Under Section 13006 of the California Probate Code (“CPC”) “successor of the decedent” means only those persons who succeed to a particular item of the decedent’s property. Thus, unlike the notice to consumer rules, which are intended to facilitate the protection and enforcement of the consumer’s personal rights, CPC § 13006 deals with the rights of others to 1 For example, if the consumer is a minor, then service is required to be given to the consumer’s “parent, guardian, conservator or similar fiduciary.” (CCP § 1985.3(b)(1)).

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certain property owned by a decedent. Thus, if the proceeding does not involve a claim to that particular property, the successors of the decedent, as defined in CPC § 13006 would not be the appropriate person(s) to be served with the notice.

Many TEXCOM members felt that the Resolution is not necessary, as the Notice to

Consumer, in these types of cases, is usually served on the surviving spouse or, if none, on the children or more remote descendants of the decedent. In a substantial majority of these cases, it is rare that anyone objects to the subpoena. In any event, it is generally understood that, upon death, a person no longer has a right of privacy. Therefore, since violation of the right of privacy is the predominant grounds for objecting to a subpoena by a consumer (or the consumer’s “parent, guardian, conservator or similar fiduciary”) it is not necessary to amend CCP § 1985.3 to specify requirements for serving the Notice to Consumer where the consumer is deceased.

DISCLAIMER:

This position is only that of the TRUSTS & ESTATES SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the TRUSTS & ESTATES SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

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RESOLUTION 06-07-2015 DIGEST Judges: Ex Parte Notice for Failure to Respond to Request for Disqualification Amends Code of Civil Procedure section 170.3 to require ex parte notice to a judge who fails to respond to a request for disqualification. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Code of Civil Procedure section 170.3 to require ex parte notice to a judge who fails to respond to a request for disqualification. This resolution should be disapproved because the requirement for ex parte notice would result in an ex parte hearing, and would require the targeted judicial officer to respond to the request for disqualification. Taking into consideration the proponent’s concern that trial courts have had their budgets cut in recent years, the added expense and time required of a court to hold ex parte proceedings related to a section 170.3 challenge seem burdensome. The resolution requires the judge who is subject to the recusal order to attend the recusal as well as the hearing judge to prepare findings on the record. Under current law, a judge who is served with a verified statement requesting that he/she be disqualified must answer within 10 days or is automatically disqualified. This automatic disqualification may be a more efficient use of court resources as well as provide the two judges required for the process to avoid being forced to act contrary to their wishes. Moreover, the current 10-day window to reply provides sufficient time for judicial officers to respond, if they choose to. A judicial officer may select not to respond but simply take advantage of the automatic recusal process. Additionally, there is concern that the resolution is vague, requiring ex parte notice within five days, but remaining silent on when a hearing must take place, and how soon a decision must be rendered. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Code of Civil Procedure section 170.3 to read as follows: §170.3 (a) (1) If a judge determines himself or herself to be disqualified, the judge shall notify 1 the presiding judge of the court of his or her recusal and shall not further participate in the 2 proceeding, except as provided in Section 170.4, unless his or her disqualification is waived by 3 the parties as provided in subdivision (b). 4

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(2) If the judge disqualifying himself or herself is the only judge or the presiding judge of 5 the court, the notification shall be sent to the person having authority to assign another judge to 6 replace the disqualified judge. 7 (b) (1) A judge who determines himself or herself to be disqualified after disclosing the 8 basis for his or her disqualification on the record may ask the parties and their attorneys whether 9 they wish to waive the disqualification, except where the basis for disqualification is as provided 10 in paragraph (2). A waiver of disqualification shall recite the basis for the disqualification, and is 11 effective only when signed by all parties and their attorneys and filed in the record. 12 (2) There shall be no waiver of disqualification if the basis therefor is either of the 13 following: 14 (A) The judge has a personal bias or prejudice concerning a party. 15 (B) The judge served as an attorney in the matter in controversy, or the judge has been a 16 material witness concerning that matter. 17 (3) The judge shall not seek to induce a waiver and shall avoid any effort to discover 18 which lawyers or parties favored or opposed a waiver of disqualification. 19 (4) If grounds for disqualification are first learned of or arise after the judge has made one 20 or more rulings in a proceeding, but before the judge has completed judicial action in a 21 proceeding, the judge shall, unless the disqualification be waived, disqualify himself or herself, 22 but in the absence of good cause the rulings he or she has made up to that time shall not be set 23 aside by the judge who replaces the disqualified judge. 24 (c) (1) If a judge who should disqualify himself or herself refuses or fails to do so, any 25 party may file with the clerk a written verified statement objecting to the hearing or trial before 26 the judge and setting forth the facts constituting the grounds for disqualification of the judge. The 27 statement shall be presented at the earliest practicable opportunity after discovery of the facts 28 constituting the ground for disqualification. Copies of the statement shall be served on each party 29 or his or her attorney who has appeared and shall be personally served on the judge alleged to be 30 disqualified, or on his or her clerk, provided that the judge is present in the courthouse or in 31 chambers. 32 (2) Without conceding his or her disqualification, a judge whose impartiality has been 33 challenged by the filing of a written statement may request any other judge agreed upon by the 34 parties to sit and act in his or her place. 35 (3) Within 10 days after the filing or service, whichever is later, the judge may file a 36 consent to disqualification in which case the judge shall notify the presiding judge or the person 37 authorized to appoint a replacement of his or her recusal as provided in subdivision (a), or the 38 judge may file a written verified answer admitting or denying any or all of the allegations 39 contained in the party's statement and setting forth any additional facts material or relevant to the 40 question of disqualification. The clerk shall forthwith transmit a copy of the judge's answer to 41 each party or his or her attorney who has appeared in the action. 42 (4) A judge who fails to file a consent or answer within the time allowed shall be deemed 43 to have consented to his or her disqualification and the clerk shall notify the presiding judge or 44 person authorized to appoint a replacement of the recusal as provided in subdivision (a). be 45 noticed ex parte within 5 court days thereafter to answer the request for disqualification. 46 (5) A judge who refuses to recuse himself or herself shall not pass upon his or her own 47 disqualification or upon the sufficiency in law, fact, or otherwise, of the statement of 48 disqualification filed by a party. In that case, the question of disqualification shall be heard and 49 determined by another judge agreed upon by all the parties who have appeared or, in the event 50

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they are unable to agree within five days of notification of the judge's answer, by a judge selected 51 by the chairperson of the Judicial Council, or if the chairperson is unable to act, the vice 52 chairperson. The clerk shall notify the executive officer of the Judicial Council of the need for a 53 selection. The selection shall be made as expeditiously as possible. No challenge pursuant to this 54 subdivision or Section 170.6 may be made against the judge selected to decide the question of 55 disqualification. 56 (6) The judge deciding the question of disqualification may decide the question on the 57 basis of the statement of disqualification and answer and any written arguments as the judge 58 requests, or the judge may set the matter for hearing as promptly as practicable. If a hearing is 59 ordered, the judge shall permit the parties and the judge alleged to be disqualified to argue the 60 question of disqualification and shall for good cause shown hear evidence on any disputed issue 61 of fact. If the judge deciding the question of disqualification determines that the judge is 62 disqualified, the judge hearing the question shall notify the presiding judge or the person having 63 authority to appoint a replacement of the disqualified judge as provided in subdivision (a). 64 (d) The determination of the question of the disqualification of a judge is not an 65 appealable order and may be reviewed only by a writ of mandate from the appropriate court of 66 appeal sought only by the parties to the proceeding. The petition for the writ shall be filed and 67 served within 10 days after service of written notice of entry of the court's order determining the 68 question of disqualification. If the notice of entry is served by mail, that time shall be extended 69 as provided in subdivision (a) of Section 1013. 70

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County

STATEMENT OF REASONS The Problem: Currently if a Judge, or their clerk, is served with a verified statement requesting a Judge be disqualified they must answer within 10 days or they are automatically disqualified. Judges are very busy, especially family law judges. With this code section an attorney who may not want a judge to hear a case for whatever reason, whether mid trial or between hearings, may serve a verified statement to request disqualification on the judge's clerk. Clerks are often moving positions and not all are familiar with this code section. No hearing is set and the request is often simply put into the file, an inbox, or on a desk. As such, some lawyers are using this code section as a means to surreptitiously, but legally, disqualify judges by abusing overcrowded calendars and/or naive judicial clerks. This can be between trial dates to receive a new trial with a new judge. The Solution: This Resolution removes the automatic disqualification to make sure the issue is addressed. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known.

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AUTHOR AND/OR PERMANENT CONTACT: Janet Bledsoe Lacy, 900 Pier View Way, Oceanside, CA, 92054; telephone (760) 722-1234, email jeffrey.lacy@glkohlaw.com RESPONSIBLE FLOOR DELEGATE: Jeffrey Lacy, Esq.

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RESOLUTION 06-08-2015 DIGEST Arbitration: Motion to Compel in Pending Case Adds Code of Civil Procedure section 1290.1 to create a motion to compel arbitration procedure for use in pending civil cases. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution adds Code of Civil Procedure section 1290.1 to create a motion to compel arbitration procedure for use in pending civil cases. This resolution should be disapproved because it would result in two differing procedures, likely leading to confusion. Code of Civil Procedure section 1290, et seq. provides the general framework for the enforcement of arbitration agreements, providing parameters for the court’s determination of whether arbitration is appropriate, and begins with “[o]n petition of a party to an arbitration agreement . . .” and then discusses the exceptions to the requirement that arbitration be ordered. Unless language such as “or, when litigation between the parties is pending, a noticed motion” is added to that section, it would not be clear that a noticed motion in a pending proceeding would be subject to the same type review, including a statement of decision, as a petition. The purpose of Code of Civil Procedure section 1290 is to permit the initiation of a petition to compel arbitration, presumably when there is not already litigation pending between the parties, and that section and subsequent sections, which relate to the Petition procedure, would apply. If litigation is already pending, a petition to compel arbitration is allowed under Code of Civil Procedure section 1292.4, and is handled as a law and motion matter. California Rules of Court, rule 3.1300, is captioned “Noticed Motions,” and that rule, through and including rule 3.1312, coupled with Code of Civil Procedure section 1003 et seq. already provides motion framework the proponent appears to desire, subject to the specific requirements of the petition process. This resolution would result in a significantly different procedure with different time frames, resulting only from the use of the word “motion” instead of “petition,” but obtain identical procedural result, that is, a ruling on whether arbitration is required. It is not necessary.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to add California Civil Procedure Code section 1290.1 to read as follows: §1290. In a proceeding in a court of this State that is commenced by a complaint, a party may 1 make a motion to compel arbitration in lieu of a petition. Rules applying to a petition to compel 2 arbitration also apply to a motion to compel arbitration, except that there must be at least 16 3 court days’ notice for a motion, any opposition may be filed no later than 9 court days before the 4 scheduled hearing, and any reply may be filed no later than 5 court days before the scheduled 5 hearing. Opposition and replies must be served such that they are received by the following 6 business day. 7

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Los Angeles County Bar Association STATEMENT OF REASONS The Problem: Under existing law, there is no statutory provision for a motion to compel arbitration. Yet they regularly occur, and are subject to vague and confusing interpretations of the arbitration statutes and case law. One of the biggest problems with a motion to compel is that people are unsure of the deadline for a response because petitions to compel have a special 10-day response deadline. The Solution: To solve this problem, a clear explanation of the permissibility of a motion to compel arbitration must be made and a proper procedure for its handling must be enacted. Thus, proposed section 1290.1 clarifies that a motion is permissible, applies the normal motion notice rules to the briefing and service, and makes all other statutes relating to petitions to compel apply to motions to compel. This resolution will fix a common pitfall that trips up even experienced attorneys. IMPACT STATEMENT This proposed resolution does not affect any other law, statute, or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Scott O. Luskin, Payne & Fears LLP, 801 S. Figueroa Street, Suite 1150, Los Angeles, CA 90017, 213-439-9911, sol@paynefears.com RESPONSIBLE FLOOR DELEGATE: Scott O. Luskin

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SECTION COMMENTS TO RESOLUTION 06-08-2015 STATE BAR OF CALIFORNIA’S COMMITTEE ON ALTERNATIVE DISPUTE RESOLTUION DISAPPROVE This Resolution proposes enactment of a new Code of Civil Procedure section 1290.1, providing that a party may make a motion to compel arbitration in lieu of a petition when a proceeding is commenced by a complaint. The Resolution would leave in place Code of Civil Procedure section 1281.7, which provides that a petition to compel arbitration pursuant to Code of Civil Procedure section 1281.2 may be filed in lieu of filing an answer to a complaint.

As noted in the Resolution, a petition to compel arbitration is subject to unique procedural requirements. A motion to compel arbitration under proposed Code of Civil Procedure section 1290.1 would be subject to different procedural requirements. This would result in two separate and distinct procedural mechanism for obtaining the identical result. The State Bar’s Committee on Alternative Dispute Resolution (ADR Committee) sees no need to add this second procedural mechanism, and believes that doing so may result in confusion. The ADR Committee believes the law should provide for one or the other procedure, but not both. Disclaimer

This position is only that of the State Bar of California’s Committee on Alternative Dispute Resolution. This position has not been adopted by the State Bar’s Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Committee activities relating to this position are funded from voluntary sources. STATE BAR OF CALIFORNIA’S COMMITTEE ON ADMINISTRATION OF JUSTICE

DISAPPROVE This Resolution proposes enactment of a new Code of Civil Procedure section 1290.1, providing that a party may make a motion to compel arbitration in lieu of a petition when a proceeding is commenced by a complaint. The Resolution would leave in place Code of Civil Procedure section 1281.7, which provides that a petition to compel arbitration pursuant to Code of Civil Procedure section 1281.2 may be filed in lieu of filing an answer to a complaint. In the experience of the members of the State Bar’s Committee on Administration of Justice (CAJ), that petition is a common way to seek to compel arbitration after a complaint has been filed. As noted in the Resolution, that petition is subject to unique procedural requirements. CAJ opposes this Resolution because it would add a separate and distinct procedural mechanism for obtaining the identical result. The substance of a petition to compel arbitration under section 1281.7 would

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be the same as the substance of a motion to compel arbitration under proposed new section 1290.1, so the procedural requirements would essentially be determined by the mere title of the pleading. CAJ sees no need to add this second procedural mechanism, and believes that doing so may result in confusion. Disclaimer

This position is only that of the State Bar of California’s Committee on Administration of Justice. This position has not been adopted by the State Bar’s Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Committee activities relating to this position are funded from voluntary sources.

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RESOLUTION 06-09-2015 DIGEST Civil Procedure: Supplemental Discovery Requests Not Tied to Initial Trial Setting Conference Amends Code of Civil Procedure sections 2030.070 and 2031.050, to permit a party to propound supplemental discovery requests without regard for the date of the initial trial setting conference. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Code of Civil Procedure sections 2030.070 and 2031.050, to permit a party to propound supplemental discovery requests without regard for the date of the initial trial setting conference. This resolution should be approved in principle, because it provides parties with the flexibility to propound supplemental interrogatories and inspection demands as needed without having to seek the court’s permission to do so. California does not require a party to supplement discovery responses or document production if new information comes to light. Instead, supplemental requests are the way for parties to obtain such information. Under the current statutes, a party may propound supplemental discovery requests twice before the trial date is set, and once after the trial date is set but before trial. In some counties, like San Francisco, the trial date is set early in the case, before the parties have conducted much discovery. While in others, the trial date is set shortly before the trial. Either way, the parties may not be able to avail themselves of the full number of supplemental interrogatories and requests for production, to their prejudice. This resolution’s solution permits parties to request supplemental responses as needed, without regard for trial setting, such as before key depositions and then once again before trial. Under the current statute, parties must reserve the post-trial setting supplemental request until shortly before trial. This revision will allow the parties greater flexibility in deciding when to use supplemental discovery requests, and make it possible for parties to use the full number of supplemental requests allowed by the Civil Discovery Act. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Code of Civil Procedure section 2030.070 and 2031.050 to read as follows: §2030.070 (a) In addition to the number of interrogatories permitted by Sections 2030.030 and 1 2030.040, a party may propound a supplemental interrogatory to elicit any later acquired 2 information bearing on all answers previously made by any party in response to interrogatories. 3

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(b) A party may propound a supplemental interrogatory twice before the initial setting of 4 a trial date, and, three times, subject to the time limits on discovery proceedings and motions 5 provided in Chapter 8 (commencing with Section 2024.010), once after the initial setting of a 6 trial date. 7 (c) Notwithstanding subdivisions (a) and (b), on motion, for good cause shown, the court 8 may grant leave to a party to propound an additional number of supplemental interrogatories. 9 10 §2031.050 11 (a) In addition to the demands for inspection, copying, testing, or sampling permitted by 12 this chapter, a party may propound a supplemental demand to inspect, copy, test, or sample any 13 later acquired or discovered documents, tangible things, land or other property, or electronically 14 stored information in the possession, custody, or control of the party on whom the demand is 15 made. 16 (b) A party may propound a supplemental demand for inspection, copying, testing, or 17 sampling twice before the initial setting of a trial date, and three times, subject to the time limits 18 on discovery proceedings and motions provided in Chapter 8 (commencing with Section 19 2024.010), once after the initial setting of a trial date. 20 (c) Notwithstanding subdivisions (a) and (b), on motion, for good cause shown, the court 21 may grant leave to a party to propound an additional number of supplemental demands for 22 inspection, copying, testing, or sampling. 23

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem: The current statutes provide that you can propound supplemental interrogatories and inspection demands twice before the initial trial setting, and once thereafter. In some jurisdictions, trial setting conferences occur relatively early in the case, while discovery is underway. In other jurisdictions, trial is not set until shortly before the trial date. Parties would be able to request supplemental responses before key depositions and then once again before trial, regardless of when the trial setting conference occurs. Under the current statute, parties must reserve the post-setting supplemental request until shortly before trial. Depositions are often taken after the trial setting, but before the supplemental request should be made. This revision will allow the parties to choose when the supplemental discovery requests are served. The Solution: This resolution permits supplemental requests without regard to trial setting, giving greater latitude to the parties to maximize their discovery efforts without resort to the Court to permit additional supplemental requests. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known.

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AUTHOR AND/OR PERMANENT CONTACT: Hayley Schwartzkopf, Esq., Meyers Fozi, LLP, 1925 Palomar Oaks Way, Ste. 110, Carlsbad, CA 92008; (760) 444-0039 RESPONSIBLE FLOOR DELEGATE: Mary V.J. Cataldo, Esq.

SECTION COMMENTS TO RESOLUTION 06-09-2015 STATE BAR OF CALIFORNIA’S COMMITTEE ON ADMINISTRATION OF JUSTICE APPROVE

The State Bar’s Committee on Administration of Justice (CAJ) agrees that parties should be permitted to propound three supplemental interrogatories and inspection demands without regard to whether they are propounded before or after the initial setting of a trial date. Disclaimer

This position is only that of the State Bar of California’s Committee on Administration of Justice. This position has not been adopted by the State Bar’s Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Committee activities relating to this position are funded from voluntary sources.

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RESOLUTION 06-10-2015 DIGEST Arbitration: Grounds for Vacating Awards – Refusal to Allow Court Reporting of Proceedings Amends Code of Civil Procedure section 1286.2 to provide that the refusal of the arbitrator to allow reporting of proceedings constitutes a ground for vacating an arbitration award. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Code of Civil Procedure section 1286.2 to provide that the refusal of the arbitrator to allow reporting of proceedings constitutes a ground for vacating an arbitration award. This resolution should be disapproved because it would provide a basis to avoid agreements where the parties elected to not have a reporter and would allow for a battle of competing reporters. Arbitration is a creature of contract and the parties have the ability to fashion its procedures by agreement, including streamlined processes that do not allow a court reporter. There are many instances where the parties do not want the arbitration proceedings transcribed when they agreed to arbitration, e.g. trade secret disputes and contracts involving sensitive personal or business information. This resolution would effectively allow one party to avoid that agreement by requesting the proceedings be transcribed knowing the arbitrator would be required to deny the request as contrary to the party’s agreement and then attack ensuing arbitration award on grounds a reporter was not allowed. Likewise, as drafted, this resolution creates a problem because it would require an arbitrator allow multiple reporters if each request the use of their hired reporter and cannot agree on a joint reporter. This result is created by the “any party” language without regard to whether the proceedings are ultimately reported. This, in turn, creates the potential additional problem of competing official transcripts. TEXT OF RESOLUTION RESOLVED, that the Conference of California Bar Associations recommends that legislation be sponsored to amend Code of Civil Procedure section 1286.2, to read as follows: §1286.2 (a) Subject to Section 1286.4, the court shall vacate the award if the court determines any 1 of the following: 2 (1) The award was procured by corruption, fraud or other undue means. 3 (2) There was corruption in any of the arbitrators. 4 (3) The rights of the party were substantially prejudiced by misconduct of a neutral 5

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arbitrator. 6 (4) The arbitrators exceeded their powers and the award cannot be corrected without 7 affecting the merits of the decision upon the controversy submitted. 8 (5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to 9 postpone the hearing upon sufficient cause being shown therefor or by the refusal of the 10 arbitrators to hear evidence material to the controversy or by refusal of the arbitrators to allow 11 any party, at the party’s expense, to have a certified shorthand reporter transcribe as the official 12 record any deposition, proceeding, and/or hearing or by other conduct of the arbitrators contrary 13 to the provisions of this title. 14 (6) An arbitrator making the award either: (A) failed to disclose within the time required 15 for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was 16 subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of 17 timely demand to disqualify himself or herself as required by that provision. However, this 18 subdivision does not apply to arbitration proceedings conducted under a collective bargaining 19 agreement between employers and employees or between their respective representatives. 20 (b) Petitions to vacate an arbitration award pursuant to Section 1285 are subject to the 21 provisions of Section 128.7. 22

(Proposed new language underlined; deleted language stricken.)

PROPONENTS: Joseph A. Goldstein, Lisa Berger, Barbara E. Figari, Daryl Miller, Morgan E. Pietz, Vickly L. Barker, Charles Wake, Robin Berstein-Lev, Margaret J. Grover, Cathleen Yonahara STATEMENT OF REASONS The Problem: The rights of a party in arbitration can be substantially prejudiced because in the absence of a reporter’s transcript or a suitable substitute, a reviewing court will conclude that an arbitration award, like all judgments or orders of lower courts, are presumed to be correct. Numerous appellate courts have refused to reach the merits of an appellant’s claims because no reporter’s transcript of a pertinent proceeding or a suitable substitute was provided. Another piece of direct evidence is the American Arbitration Association (“AAA”) Employment Arbitration Rule and Mediation (“EARM”) Procedure No. 20 which states in pertinent part: “If the transcript is agreed by the parties, or determined by the arbitrator to be the official record of the proceeding, it must be provided to the arbitrator and made available to the other parties for inspection, at a date, time, and place determined by the arbitrator.” The underlined portion of this rule, which is applicable to all AAA Employment cases, is a denial of a fundamental right to fairness of an arbitration proceeding because it gives either the party opposing official transcription and/or the Arbitrator complete veto power over having an official record of any deposition, hearing, and/or proceedings, which in turn causes substantially prejudice because no reporter’s transcript or suitable substitute is then available for a reviewing court. In addition, JAMS Arbitration, Mediation, and ADR Services (“JAMS”) Rule 22 (j) states: “Any Party may arrange for a stenographic or other record to be made of the Hearing and shall inform the other Parties in advance of the Hearing”. Here, the only mention of a court reporter’s record in the JAMS Rule is as that term relates to a “Hearing”. Depending on the meaning of the term “Hearing”, as defined either by the parties’ arbitration agreement or by the Arbitrator, a party

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will be denied the right to have a court reporter present at a deposition, status conference, and/or other proceeding, and to have the court reporter’s record deemed the official record of the arbitration proceedings to enable court review. This is a denial of a fundamental due process right to fairness of an arbitration proceeding. The Solution: Would add specific language to subdivision (a) (5) of Section 1286.2 which would prohibit an arbitrator from refusing to allow any party to an arbitration from having an official reporter produce a transcript as the official record of any deposition, proceeding, and/or hearing. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Joseph A. Goldstein, The Goldstein Law Firm, 8912 Burton Way, Beverly Hills, California 90211; 310 553-4746; fax 310 282 8070; jgoldstein@gpfirm.com RESPONSIBLE FLOOR DELEGATE: Joseph A. Goldstein

SECTION COMMENTS TO RESOLUTION 06-10-2015 STATE BAR OF CALIFORNIA’S COMMITTEE ON ALTERNATIVE DISPUTE RESOLUTION DISAPPROVE According to the proponents, this Resolution “would prohibit an arbitrator from refusing to allow any party to an arbitration from having an official reporter produce a transcript as the official record of any deposition, proceeding, and/or hearing.” The State Bar’s Committee on Alternative Dispute Resolution (ADR Committee) is composed of arbitrators, mediators, and consumers of ADR services with many years of experience. In the ADR Committee’s collective experience, this has not been a problem, and committee members were not aware of a situation where an arbitrator has refused to allow a party to an arbitration to have an official reporter produce a transcript as an official record. Those on the ADR Committee who act as arbitrators report that it is not uncommon for a party to provide an official reporter at the party’s expense, and could see no reason to refuse to allow a party to have to have an official reporter produce a transcript as an official record. The Resolution also proposes a problematic solution to any issues that may exist. Under this Resolution, the court would have the power to vacate an arbitration award if it determined that the rights of the party were substantially prejudiced by the refusal of the arbitrator to allow a party to have a certified reporter transcribe as the official record any deposition, proceeding or

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hearing. Under most or all scenarios, a party would know at the time of the deposition, proceeding or hearing whether the arbitrator will allow the party to have a reporter produce a transcript as an official record. The party could then choose to proceed without a reporter’s transcript, assuming a refusal by the arbitrator. Under this proposal, the party could then wait until after the arbitration award is issued, to see if the arbitrator ruled in favor of the party. If not, the party could then seek to vacate the adverse arbitration award, claiming that rights of the party were substantially prejudiced by the arbitrator’s refusal to allow a reporter to produce a transcript as an official record. Assuming a party knows at the time of the deposition, proceeding or hearing that the arbitrator refuses to allow the party to have a reporter produce a transcript as an official record, allowing a party to wait until after the arbitration award is issued and potentially have the award vacated as a result of that refusal does not, under those circumstances, seem to be an appropriate remedy. All parties would have incurred the time and expense of the initial arbitration, and vacatur could require the parties to arbitrate a second time, incurring the time and expense again.

Disclaimer This position is only that of the State Bar of California’s Committee on Alternative Dispute Resolution. This position has not been adopted by the State Bar’s Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Committee activities relating to this position are funded from voluntary sources. STATE BAR OF CALIFORNIA’S COMMITTEE ON ADMINISTRATION OF JUSTICE DISAPPROVE According to the proponents, this Resolution “would prohibit an arbitrator from refusing to allow any party to an arbitration from having an official reporter produce a transcript as the official record of any deposition, proceeding, and/or hearing.” In the experience of the members of the State Bar’s Committee on Administration of Justice (CAJ), this has not been a problem. CAJ is not aware of a situation where an arbitrator has refused to allow a party to an arbitration to have an official reporter produce a transcript as an official record. Although the Resolution says that appellate courts have refused to reach the merits of an appellant’s claim because no reporter’s transcript was provided, it does not say whether these appellate proceedings arose out of arbitrations or – more importantly – whether they involve situations where an arbitrator refused to allow a party to have an official reporter produce a transcript. The Resolution also quotes two rules that could be interpreted in certain ways, but does not say whether either rule has actually resulted in such a refusal.

The Resolution also proposes a problematic solution to any issues that may exist. Under this Resolution, the court would have the power to vacate an arbitration award if it determined that the rights of the party were substantially prejudiced by the refusal of the arbitrator to allow a party to have a certified reporter transcribe as the official record any deposition, proceeding or hearing. A party would presumably know at the time of the deposition, proceeding or hearing whether the arbitrator will allow the party to have a reporter produce a reporter’s transcript.

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Under this proposal, the party could wait until after the arbitration award is issued, to see if the arbitrator ruled in favor of the party. If not, the party could then seek to vacate the adverse arbitration award, based on a refusal to allow a reporter to produce a transcript as an official record. Disclaimer

This position is only that of the State Bar of California’s Committee on Administration of Justice. This position has not been adopted by the State Bar’s Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Committee activities relating to this position are funded from voluntary sources.

COUNTERARGUMENTS TO RESOLUTION 06-10-2015 ORANGE COUNTY BAR ASSOCIATION Although Proponents cite “fundamental due process and right to fairness” in support of their resolution, their real concern is that a party may be denied an “official record” of the proceeding for a merits appeal. This reasoning suffers two major flaws. First, the forum rules cited by Proponents do not prohibit reporters. AAA Rule 20 cited by Proponents includes the following not quoted by Proponents: “Any party desiring a stenographic record shall make arrangements directly with a stenographer and shall notify the other parties of these arrangements at least three days in advance of the hearing.” Similarly, the JAMS rule quoted by Proponents permits a party to have a reporter at that party’s cost. No one is being denied a reporter by such rules. Second, there is no merits appeal to a reviewing court from an arbitration award in the absence of a specific contractual right. Cable Connections, Inc. v. DirecTV, Inc. (2008) 44 Cal.4th 1334, 1361 (“to take themselves out of the general rule that the merits of the award are not subject to judicial review, the parties must clearly agree that legal errors are an excess of arbitral authority that is reviewable by the courts”). Parties desiring such judicial appellate review would be wise to include in their arbitration agreement a requirement for an “official transcript.” It would turn arbitrations on their head to allow a party, who in the first instance must agree to arbitration and in the second may specify terms of that arbitration, to vacate an award because of the lack of a useless transcript.

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RESOLUTION 06-11-2015 DIGEST Summary Judgment: Motion for Reconsideration as Motion for New Trial and to Set Aside Judgment Amends Code of Civil Procedure section 437c to require that a motion to reconsider the grant of a summary judgment motion be deemed a motion for new trial and to set aside judgment. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Code of Civil Procedure section 437c to require that a motion to reconsider the grant of a summary judgment motion be deemed a motion for new trial and to set aside judgment. This resolution should be disapproved because requiring courts to apply competing, inconsistent standards to all motions to reconsider orders granting summary judgment would create more problems than it would solve. Although the terms used are similar, an order granting a motion for summary judgment is not the same as the judgment subsequently entered as a result of that grant. “Except where a separate judgment may properly be awarded in the action, no judgment may be entered on a motion for summary judgment prior to the termination of the action[.]” (Code Civ. Proc., § 437c, subd. (k).) This resolution appears to be addressed to cases in which judgment is entered after a party has filed a motion for reconsideration (Code Civ. Proc., § 1008) of the grant of a motion for summary judgment, but fails to file either a motion for new trial (Code Civ. Proc., § 659) or a motion to set aside the judgment (Code Civ. Proc., § 663) prior to appeal. Because the trial court (and by extension, the appellate court) loses jurisdiction to rule on the motion for reconsideration once judgment is entered, a party that has pursued only a motion for reconsideration is left without an appellate remedy after judgment for any new information or law raised by that motion. Rather than limiting its effect to this relatively narrow circumstance, however, this resolution would treat all motions for reconsideration as motions for new trial and to set aside judgment. In many cases, there may be good reasons for bringing only a motion to reconsider. Moreover, the standards, briefing schedules, and remedies afforded by these motions differ, and the resolution does not specify which of these should apply. Resolution 11-05-2015, put forward by the same proponent, provides a better, more narrowly-tailored solution to the problem identified by this resolution, by extending trial court jurisdiction to hear motions for reconsideration of orders granting summary judgment that are still pending at entry of judgment.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend Code of Civil Procedure section 437c, to read as follows: §437c (a) Any party may move for summary judgment in any action or proceeding if it is 1 contended that the action has no merit or that there is no defense to the action or proceeding. The 2 motion may be made at any time after 60 days have elapsed since the general appearance in the 3 action or proceeding of each party against whom the motion is directed or at any earlier time 4 after the general appearance that the court, with or without notice and upon good cause shown, 5 may direct. Notice of the motion and supporting papers shall be served on all other parties to the 6 action at least 75 days before the time appointed for hearing. However, if the notice is served by 7 mail, the required 75-day period of notice shall be increased by five days if the place of address 8 is within the State of California, 10 days if the place of address is outside the State of California 9 but within the United States, and 20 days if the place of address is outside the United States, and 10 if the notice is served by facsimile transmission, Express Mail, or another method of delivery 11 providing for overnight delivery, the required 75-day period of notice shall be increased by two 12 court days. The motion shall be heard no later than 30 days before the date of trial, unless the 13 court for good cause orders otherwise. The filing of the motion shall not extend the time within 14 which a party must otherwise file a responsive pleading. 15 (b) (1) The motion shall be supported by affidavits, declarations, admissions, answers to 16 interrogatories, depositions, and matters of which judicial notice shall or may be taken. The 17 supporting papers shall include a separate statement setting forth plainly and concisely all 18 material facts which the moving party contends are undisputed. Each of the material facts stated 19 shall be followed by a reference to the supporting evidence. The failure to comply with this 20 requirement of a separate statement may in the court’s discretion constitute a sufficient ground 21 for denial of the motion. 22 (2) Any opposition to the motion shall be served and filed not less than 14 days preceding 23 the noticed or continued date of hearing, unless the court for good cause orders otherwise. The 24 opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to 25 interrogatories, depositions, and matters of which judicial notice shall or may be taken. 26 (3) The opposition papers shall include a separate statement that responds to each of the 27 material facts contended by the moving party to be undisputed, indicating whether the opposing 28 party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly 29 and concisely any other material facts that the opposing party contends are disputed. Each 30 material fact contended by the opposing party to be disputed shall be followed by a reference to 31 the supporting evidence. Failure to comply with this requirement of a separate statement may 32 constitute a sufficient ground, in the court’s discretion, for granting the motion. 33 (4) Any reply to the opposition shall be served and filed by the moving party not less than 34 five days preceding the noticed or continued date of hearing, unless the court for good cause 35 orders otherwise. 36 (5) Evidentiary objections not made at the hearing shall be deemed waived. 37 (6) Except for subdivision (c) of Section 1005 relating to the method of service of 38 opposition and reply papers, Sections 1005 and 1013, extending the time within which a right 39 may be exercised or an act may be done, do not apply to this section. 40

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(7) Any incorporation by reference of matter in the court’s file shall set forth with 41 specificity the exact matter to which reference is being made and shall not incorporate the entire 42 file. 43 (c) The motion for summary judgment shall be granted if all the papers submitted show 44 that there is no triable issue as to any material fact and that the moving party is entitled to a 45 judgment as a matter of law. In determining whether the papers show that there is no triable issue 46 as to any material fact the court shall consider all of the evidence set forth in the papers, except 47 that to which objections have been made and sustained by the court, and all inferences 48 reasonably deducible from the evidence, except summary judgment may not be granted by the 49 court based on inferences reasonably deducible from the evidence, if contradicted by other 50 inferences or evidence, which raise a triable issue as to any material fact. 51 (d) Supporting and opposing affidavits or declarations shall be made by any person on 52 personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the 53 affiant is competent to testify to the matters stated in the affidavits or declarations. Any 54 objections based on the failure to comply with the requirements of this subdivision shall be made 55 at the hearing or shall be deemed waived. 56 (e) If a party is otherwise entitled to a summary judgment pursuant to this section, 57 summary judgment may not be denied on grounds of credibility or for want of cross-examination 58 of witnesses furnishing affidavits or declarations in support of the summary judgment, except 59 that summary judgment may be denied in the discretion of the court, where the only proof of a 60 material fact offered in support of the summary judgment is an affidavit or declaration made by 61 an individual who was the sole witness to that fact; or where a material fact is an individual’s 62 state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s 63 affirmation thereof. 64 (f) (1) A party may move for summary adjudication as to one or more causes of action 65 within an action, one or more affirmative defenses, one or more claims for damages, or one or 66 more issues of duty, if that party contends that the cause of action has no merit or that there is no 67 affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of 68 action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of 69 the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff 70 or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes 71 of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. 72 (2) A motion for summary adjudication may be made by itself or as an alternative to a 73 motion for summary judgment and shall proceed in all procedural respects as a motion for 74 summary judgment. However, a party may not move for summary judgment based on issues 75 asserted in a prior motion for summary adjudication and denied by the court, unless that party 76 establishes to the satisfaction of the court, newly discovered facts or circumstances or a change 77 of law supporting the issues reasserted in the summary judgment motion. 78 (g) Upon the denial of a motion for summary judgment, on the ground that there is a 79 triable issue as to one or more material facts, the court shall, by written or oral order, specify one 80 or more material facts raised by the motion as to which the court has determined there exists a 81 triable controversy. This determination shall specifically refer to the evidence proffered in 82 support of and in opposition to the motion which indicates that a triable controversy exists. Upon 83 the grant of a motion for summary judgment, on the ground that there is no triable issue of 84 material fact, the court shall, by written or oral order, specify the reasons for its determination. 85 The order shall specifically refer to the evidence proffered in support of, and if applicable in 86

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opposition to, the motion which indicates that no triable issue exists. The court shall also state its 87 reasons for any other determination. The court shall record its determination by court reporter or 88 written order. 89 (h) If it appears from the affidavits submitted in opposition to a motion for summary 90 judgment or summary adjudication or both that facts essential to justify opposition may exist but 91 cannot, for reasons stated, then be presented, the court shall deny the motion, or order a 92 continuance to permit affidavits to be obtained or discovery to be had or may make any other 93 order as may be just. The application to continue the motion to obtain necessary discovery may 94 also be made by ex parte motion at any time on or before the date the opposition response to the 95 motion is due. 96 (i) If, after granting a continuance to allow specified additional discovery, the court 97 determines that the party seeking summary judgment has unreasonably failed to allow the 98 discovery to be conducted, the court shall grant a continuance to permit the discovery to go 99 forward or deny the motion for summary judgment or summary adjudication. This section does 100 not affect or limit the ability of any party to compel discovery under the Civil Discovery Act 101 (Title 4 (commencing with Section 2016.010) of Part 4). 102 (j) If the court determines at any time that any of the affidavits are presented in bad faith 103 or solely for purposes of delay, the court shall order the party presenting the affidavits to pay the 104 other party the amount of the reasonable expenses which the filing of the affidavits caused the 105 other party to incur. Sanctions may not be imposed pursuant to this subdivision, except on notice 106 contained in a party’s papers, or on the court’s own noticed motion, and after an opportunity to 107 be heard. 108 (k) Except when a separate judgment may properly be awarded in the action, no final 109 judgment may be entered on a motion for summary judgment prior to the termination of the 110 action, but the final judgment shall, in addition to any matters determined in the action, award 111 judgment as established by the summary proceeding herein provided for. 112 (l) In actions which arise out of an injury to the person or to property, if a motion for 113 summary judgment was granted on the basis that the defendant was without fault, no other 114 defendant during trial, over plaintiff’s objection, may attempt to attribute fault to or comment on 115 the absence or involvement of the defendant who was granted the motion. 116 (m) (1) A summary judgment entered under this section is an appealable judgment as in 117 other cases. Upon entry of any order pursuant to this section, except the entry of summary 118 judgment, a party may, within 20 days after service upon him or her of a written notice of entry 119 of the order, petition an appropriate reviewing court for a peremptory writ. If the notice is served 120 by mail, the initial period within which to file the petition shall be increased by five days if the 121 place of address is within the State of California, 10 days if the place of address is outside the 122 State of California but within the United States, and 20 days if the place of address is outside the 123 United States. If the notice is served by facsimile transmission, Express Mail, or another method 124 of delivery providing for overnight delivery, the initial period within which to file the petition 125 shall be increased by two court days. The superior court may, for good cause, and prior to the 126 expiration of the initial period, extend the time for one additional period not to exceed 10 days. 127 (2) Before a reviewing court affirms an order granting summary judgment or summary 128 adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the 129 parties an opportunity to present their views on the issue by submitting supplemental briefs. The 130 supplemental briefing may include an argument that additional evidence relating to that ground 131 exists, but that the party has not had an adequate opportunity to present the evidence or to 132

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conduct discovery on the issue. The court may reverse or remand based upon the supplemental 133 briefing to allow the parties to present additional evidence or to conduct discovery on the issue. 134 If the court fails to allow supplemental briefing, a rehearing shall be ordered upon timely petition 135 of any party. 136 (3) If a motion for reconsideration from an order granting summary judgment is made 137 pursuant to Section 1008 of this code, it shall be deemed to also operate as a motion for new trial 138 under Section 659 et seq. and a motion to set aside and vacate judgment under Section 663 et 139 seq. 140 (n) (1) If a motion for summary adjudication is granted, at the trial of the action, the 141 cause or causes of action within the action, affirmative defense or defenses, claim for damages, 142 or issue or issues of duty as to the motion which has been granted shall be deemed to be 143 established and the action shall proceed as to the cause or causes of action, affirmative defense or 144 defenses, claim for damages, or issue or issues of duty remaining. 145 (2) In the trial of the action, the fact that a motion for summary adjudication is granted as 146 to one or more causes of action, affirmative defenses, claims for damages, or issues of duty 147 within the action shall not operate to bar any cause of action, affirmative defense, claim for 148 damages, or issue of duty as to which summary adjudication was either not sought or denied. 149 (3) In the trial of an action, neither a party, nor a witness, nor the court shall comment 150 upon the grant or denial of a motion for summary adjudication to a jury. 151 (o) A cause of action has no merit if either of the following exists: 152 (1) One or more of the elements of the cause of action cannot be separately established, 153 even if that element is separately pleaded. 154 (2) A defendant establishes an affirmative defense to that cause of action. 155 (p) For purposes of motions for summary judgment and summary adjudication: 156 (1) A plaintiff or cross-complainant has met his or her burden of showing that there is no 157 defense to a cause of action if that party has proved each element of the cause of action entitling 158 the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met 159 that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of 160 one or more material facts exists as to that cause of action or a defense thereto. The defendant or 161 cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a 162 triable issue of material fact exists but, instead, shall set forth the specific facts showing that a 163 triable issue of material fact exists as to that cause of action or a defense thereto. 164 (2) A defendant or cross-defendant has met his or her burden of showing that a cause of 165 action has no merit if that party has shown that one or more elements of the cause of action, even 166 if not separately pleaded, cannot be established, or that there is a complete defense to that cause 167 of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the 168 plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as 169 to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon 170 the mere allegations or denials of its pleadings to show that a triable issue of material fact exists 171 but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as 172 to that cause of action or a defense thereto. 173 (q) This section does not extend the period for trial provided by Section 1170.5. 174 (r) Subdivisions (a) and (b) do not apply to actions brought pursuant to Chapter 4 175 (commencing with Section 1159) of Title 3 of Part 3. 176 (s) For the purposes of this section, a change in law does not include a later enacted 177 statute without retroactive application. 178

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(t) This section shall become operative on January 1, 2015. 179

(Proposed new language underlined; language to be deleted stricken.) PROPONENT: San Diego County Bar Association STATEMENT OF REASONS The Problem: Our courts hold that the technically proper procedure for requesting a trial court re-decide a grant of summary judgment is by way of motion for new trial and/or a motion to set aside and vacate the judgment. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858.) Nevertheless, parties and attorneys routinely seek to challenge the grant of summary judgment by way of motion for reconsideration under Code of Civil Procedure section 1008, even though the motion functions as the equivalent of a new trial motion and/or a motion to vacate and set aside. Compounding the problem is the fact that current law holds that entry of a judgment deprives the court of jurisdiction to rule on a reconsideration motion, whereas jurisdiction is not lost in relation to new trial motions and motions to vacate and set aside the judgment. (Compare APRI Ins. Co. S.A. v. Superior Court (1999) 76 Cal.App.4th 176, 181-182 [loss of jurisdiction to hear reconsideration motion upon entry of judgment] with Code Civ. Proc., §§660, 663a, subd. (b).) One court has attempted to ameliorate the problem by holding the trial court has discretion to treat a motion for reconsideration from an order granting summary judgment pending at entry of judgment, as a new trial motion and thereafter rule on the motion within the jurisdictional time limits for ruling on a new trial motion. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193-194.) The Solution: This Resolution solves the problem by codifying the rationale of the Sole Energy Co. decision and taking it the next level by requiring the court to treat the motion as the equivalent of a new trial motion and motion to set aside and vacate the judgment. Thus, the label of the motion no longer becomes controlling. Rather, it is the substantive arguments that the trial court rules on in relation to whether it will maintain the grant of summary judgment or vacate summary judgment and order the case to trial. IMPACT STATEMENT The proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Darin L. Wessel, Manning & Kass, Ellrod, Ramirez, Trester, LLP, 550 W. C Street, Suite 1900, San Diego, CA 92101; (619) 515-0269; dlw@manningllp.com. RESPONSIBLE FLOOR DELEGATE: Darin L. Wessel 1

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SECTION COMMENTS TO RESOLUTION 06-11-2015 STATE BAR OF CALIFORNIA’S COMMITTEE ON ADMINISTRATION OF JUSTICE DISAPPROVE

The Resolution would amend Code of Civil Procedure section 437c to provide that a motion for reconsideration from an order granting summary judgment shall be “deemed” to also operate as a motion for new trial and a motion to set aside and vacate the judgment. The State Bar’s Committee on Administration of Justice (CAJ) opposes this Resolution.

As the Resolution notes, the trial court has discretion to treat a motion for reconsideration from an order granting summary judgment pending at entry of judgment, as a new trial motion and thereafter rule on the motion within the jurisdictional time limits for ruling on a new trial motion. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193-194.) But as Sole Energy also states: “The proposition that a trial court may construe a motion bearing one label as a different type of motion is one that has existed for many decades. … The principle that a trial court may consider a motion regardless of the label placed on it by a party is consistent with the court’s inherent authority to manage and control its docket.” Id. at 193. CAJ believes this general principle is sufficient. Having one motion “deemed” to also operate at two additional motions would create problems and result in confusion.

A motion for reconsideration, motion for new trial, and motion to set aside and vacate a judgment are three different motions, subject to different procedural requirements. As noted in the Resolution, entry of a judgment deprives the court of jurisdiction to rule on a motion for reconsideration, whereas jurisdiction is not lost in relation to a motion for new trial or motion to set aside and vacate the judgment. It is not clear how this proposed statutory amendment would affect that issue. Would it override that rule in all cases? In addition, California Rules of Court, rule 3.1600 contains unique provisions relating to a motion for new trial, and rule 3.1602 contains unique provisions concerning a hearing of a motion to vacate judgment. If a motion for reconsideration is “deemed” to operate as these two additional motions, would every motion for reconsideration then be bound by these rules and any other provisions of law governing a motion for new trial and motion to set aside and vacate a judgment? What standards would the trial court apply when ruling on this new three-part motion, and what standard of review would apply on appeal? If a motion for reconsideration is “deemed” to also operate as a motion for new trial and motion to set aside and vacate, would a party making a motion for reconsideration be barred from also making one or both of these other motions? CAJ believes the three different motions should be kept separate, as they are today. For all of these reasons, CAJ opposes this Resolution.

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Disclaimer

This position is only that of the State Bar of California’s Committee on Administration of Justice. This position has not been adopted by the State Bar’s Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Committee activities relating to this position are funded from voluntary sources.

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RESOLUTION 06-12-2015

DIGEST Civil Procedure: Service of Process in Gated Communities Amends Code of Civil Procedure section 415.21 to authorize any investigator employed by a government entity to serve process in a gated community. RESOLUTION COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolution found. Reasons: This resolution amends Code of Civil Procedure section 415.21 to authorize any investigator employed by a government entity to serve process in a gated community. This resolution should be approved in principle because it ensures that authorized persons would be allowed entrance to serve process in a gated community so long as that person had adequate identification as to his or her authority and purpose. This resolution applies to gated communities where the gate to which entrance is sought is staffed at the time of entrance. Under this resolution, any investigator who is employed by a government entity would be entitled to enter a gated community to serve process in the same way that a sheriff, California state or federal marshal, or registered process server can. Such investigators are already authorized to serve process and should be allowed to do so to the same extent that all other authorized process servers can. Private gate entrance staff for gated communities are not required to be licensed. Unless the person seeking entrance has a badge identifying that person as a peace officer, private guard staff often refuse entrance. This resolution would ensure that authorized persons, including government investigators, are allowed entrance so long as those persons had adequate identification as to his or her authority and purpose. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to amend Code of Civil Procedure section 415.21 to read as follows: §415.21 (a) Notwithstanding any other law, any person shall be granted access to a gated 1 community for a reasonable period of time for the sole purpose of performing lawful service of 2 process or service of a subpoena, upon identifying to the guard the person or persons to be 3 served, and upon displaying a current driver's license or other identification, and one of the 4 following: 5 (1) A badge or other confirmation that the individual is acting in his or her capacity as a 6 representative of a county sheriff, or marshal, or investigator employed by a government entity. 7

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(2) Evidence of current registration as a process server pursuant to Chapter 16 8 (commencing with Section 22350) of Division 8 of the Business and Professions Code or of 9 licensure as a private investigator pursuant to Chapter 11.3 (commencing with Section 7512) of 10 Division 3 of the Business and Professions Code. 11 (b) This section shall only apply to a gated community that is staffed at the time service 12 of process is attempted by a guard or other security personnel assigned to control access to the 13 community. 14

(Proposed new language underlined; language to be deleted in strikeout.) PROPONENT: Los Angeles County Bar Association. STATEMENT OF REASONS: The Problem: Public Defender investigators are not peace officers and often are not registered process servers. As such Public Defender investigators have been denied access to gated communities when the investigator was serving a subpoena. This is despite the fact that Public Defender investigators are government employees and carry a badge. The same problem can occur with investigators from other governmental entities, such as District Attorney investigators even though they are peace officers. The Solution: This resolution gives investigators employed by public entities the same access to gated communities as any other persons serving process. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Mark Harvis, Los Angeles County Public Defender, 320 W. Temple Ste 590, Los Angeles, CA 90012 213 974-3066, mharvis@pubdef.lacounty.gov RESPONSIBLE FLOOR DELEGATE: Mark Harvis

SECTION COMMENTS TO RESOLUTION 06-12-2015 STATE BAR OF CALIFORNIA’S COMMITTEE ON ADMINISTRATION OF JUSTICE APPROVE

The State Bar’s Committee on Administration of Justice (CAJ) agrees that an “investigator employed by a government entity” should be added to the list of individuals who

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are granted access to a gated community for the sole purpose of performing lawful service of process or service of a subpoena. Disclaimer

This position is only that of the State Bar of California’s Committee on Administration of Justice. This position has not been adopted by the State Bar’s Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Committee activities relating to this position are funded from voluntary sources.

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RESOLUTION 07-01-2015 DIGEST Judicial Elections: Ballot Designations Amends Elections Code section 13107 and adds section 13107.1 to clarify ballot designations for judicial elections. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Elections Code section 13107 and adds section 13107.1 to clarify ballot designations for judicial elections. This resolution should be approved in principle because the current controls on ballot designations in judicial elections allow candidates to use misleading ballot designations. Under the current statute, elective office-holders and appointed judges may use ballot designations with no set limit on the number of words while other candidates are limited to three word designations, with the geographical designation counting as one word. This allows for inconsistencies and misrepresentations in ballot designations that result in confusion by voters about candidates seeking to be elected judge. The proposed resolution would require that actual job titles be used by eliminating word limits on the designations of city, county, district, state, or federal judicial or quasi-judicial office names, would limit to three words either the primary current profession, vocation, or occupation of the candidate, or, if presently unemployed, the primary profession, vocation, or occupation of the candidate during the calendar year immediately preceding the filing of nomination documents. By making this change, the current job titles and ballot designations of candidates for judicial office will be more consistent. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Elections Code section 13107, and add section 13107.1, to read as follows: §13107 (a) With the exception of candidates for Justice of the State Supreme Court or Court of 1 Appeal, iImmediately under the name of each candidate, and not separated from the name by any 2 line, unless the designation made by the candidate pursuant to Section 8002.5 must be listed 3 immediately below the name of the candidate pursuant to Section 13105, and in that case 4 immediately under the designation, may appear at the option of the candidate only one of the 5 following designations: 6

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(1) Words designating the elective city, county, district, state, or federal office which the 7 candidate holds at the time of filing the nomination documents to which he or she was elected by 8 vote of the people, or to which he or she was appointed, in the case of a superior court judge. 9 (2) The word “incumbent” if the candidate is a candidate for the same office which he or 10 she holds at the time of filing the nomination papers, and was elected to that office by a vote of 11 the people, or, in the case of a superior court judge, was appointed to that office. 12 (3) No more than three words designating either the current principal professions, 13 vocations, or occupations of the candidate, or the principal professions, vocations, or occupations 14 of the candidate during the calendar year immediately preceding the filing of nomination 15 documents. For purposes of this section, all California geographical names shall be considered to 16 be one word. Hyphenated words that appear in any generally available standard reference 17 dictionary, published in the United States at any time within the 10 calendar years immediately 18 preceding the election for which the words are counted, shall be considered as one word. Each 19 part of all other hyphenated words shall be counted as a separate word. 20 (4) The phrase “appointed incumbent” if the candidate holds an office other than a 21 judicial office by virtue of appointment, and the candidate is a candidate for election to the same 22 office, or, if the candidate is a candidate for election to the same office or to some other office, 23 the word “appointed” and the title of the office. In either instance, the candidate may not use the 24 unmodified word “incumbent” or any words designating the office unmodified by the word 25 “appointed.” However, the phrase “appointed incumbent” shall not be required of a candidate 26 who seeks reelection to an office which he or she holds and to which he or she was appointed, as 27 a nominated candidate, in lieu of an election, pursuant to Sections 5326 and 5328 of the 28 Education Code or Section 7228, 7423, 7673, 10229, or 10515 of this code. 29 (b) Neither the Secretary of State nor any other elections official shall accept a 30 designation of which any of the following would be true: 31 (1) It would mislead the voter. 32 (2) It would suggest an evaluation of a candidate, such as outstanding, leading, expert, 33 virtuous, or eminent. 34 (3) It abbreviates the word “retired” or places it following any word or words which it 35 modifies. 36 (4) It uses a word or prefix, such as “former” or “ex-,” which means a prior status. The 37 only exception is the use of the word “retired.” 38 (5) It uses the name of any political party, whether or not it has qualified for the ballot. 39 (6) It uses a word or words referring to a racial, religious, or ethnic group. 40 (7) It refers to any activity prohibited by law. 41 (c) If, upon checking the nomination documents and the ballot designation worksheet 42 described in Section 13107.3, the elections official finds the designation to be in violation of any 43 of the restrictions set forth in this section, the elections official shall notify the candidate by 44 registered or certified mail return receipt requested, addressed to the mailing address provided on 45 the candidate’s ballot designation worksheet. 46 (1) The candidate shall, within three days, excluding Saturday, Sunday, and state 47 holidays, from the date he or she receives notice by registered or certified mail, or from the date 48 the candidate receives actual notice of the violation, whichever occurs first, appear before the 49 elections official or, in the case of the Secretary of State, notify the Secretary of State by 50 telephone, and provide a designation that complies with subdivision (a). 51

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(2) In the event the candidate fails to provide a designation that complies with 52 subdivision (a) within the three-day period specified in paragraph (1), no designation shall 53 appear after the candidate’s name. 54 (d) No designation given by a candidate shall be changed by the candidate after the final 55 date for filing nomination documents, except as specifically requested by the elections official as 56 specified in subdivision (c) or as provided in subdivision (e). The elections official shall maintain 57 a copy of the ballot designation worksheet for each candidate that appears on the ballot in the 58 county for the same period of time as applied to nomination documents pursuant to Section 59 17100. 60 (e) The designation shall remain the same for all purposes of both primary and general 61 elections, unless the candidate, at least 98 days prior to the general election, requests in writing a 62 different designation which the candidate is entitled to use at the time of the request. 63 (f) In all cases, the words so used shall be printed in 8-point roman uppercase and 64 lowercase type except that, if the designation selected is so long that it would conflict with the 65 space requirements of Sections 13207 and 13211, the elections official shall use a type size for 66 the designation for each candidate for that office sufficiently smaller to meet these requirements. 67 (g) Whenever a foreign language translation of a candidate’s designation is required 68 under the Voting Rights Act of 1965 (42 U.S.C. Sec. 1971), as amended, to appear on the ballot 69 in addition to the English language version, it shall be as short as possible, as consistent as is 70 practicable with this section, and shall employ abbreviations and initials wherever possible in 71 order to avoid undue length. 72 73 §13107.1 74

(a) With the exception of candidates for Justice of the State Supreme Court or Court of 75 Appeal, immediately under the name of each candidate, and not separated from the name by any 76 line, may appear, should the candidate desire a designation, one of the following designations: 77

(1) Words designating the city, county, district, state, or federal judicial or quasi-judicial 78 office held by the candidate at the time of filing the nomination documents, or (B) words 79 designating the actual job title, as defined by statute, charter, or, if not defined by statute or 80 charter, other governing instrument, of an attorney employed by a city, county, district, state, or 81 by the United States. If the candidate is an official or employee of a city, the name of the city 82 must appear preceded by the words “City of.” If the candidate is an official or employee of a 83 county, the name of the county must appear preceded by the words “County of.” If the candidate 84 is a member of a quasi-judicial body, the full name of the agency must be included. If a 85 candidate is a fulltime official or employee of a city, county, district, state, or the United States 86 (working a minimum of 40 hours a week), the designation must be pursuant to this paragraph. If 87 the candidate is a part-time official or employee of such entity, the designation must include the 88 word “Part-Time” or, if the position does not reflect the candidate’s principal profession, 89 vocation, or occupation, the designation shall be pursuant to Paragraph (2). 90

(2) No more than three words designating either the current primary profession, vocation, 91 or occupation of the candidate, or, if the candidate is presently unemployed, the primary 92 profession, vocation, or occupation of the candidate during the calendar year immediately 93 preceding the filing of nomination documents. For purposes of this section, all California 94 geographical names shall be considered to be one word. Hyphenated words that appear in any 95 generally available standard reference dictionary, published in the United States at any time 96 within the 10 calendar years immediately preceding the election for which the words are 97

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counted, shall be considered as one word. Each part of all other hyphenated words shall be 98 counted as a separate word. 99

(b) Neither the Secretary of State nor any other elections official shall accept a 100 designation of a sort which would be disallowed under §13107 of this code. A member of the 101 State Bar, whether on active or inactive status, shall not use the words “Attorney,” “Lawyer,” or 102 “Counselor at Law,” or variations on those words if, during the one-year period preceding filing 103 the filing of nominating papers, the candidate has not derived at least half of his or income from 104 the practice of law or has not devoted to law practice at least half of the time he or she has spent 105 working in a profession, vocation, or occupation. 106

(c) Procedures set forth in paragraphs (c) through (g) of Section 13107 apply to judicial 107 elections. 108

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Los Angeles County Bar Association STATEMENT OF REASONS The Problem: Elections Code §13107 provides that elective office-holders and appointed judges may use ballot designations with no set limit on the number of words; all others, however, are limited to three words, with a geographical designation counting as one word. This has proven unwieldy with respect to judicial elections. For example, a person who is a “State Bar Court judge” could not use that designation; it’s four words. Yet, variations are imprecise. If one candidate is labelled a “Criminal Prosecutor” and another is designated a “Supervising Criminal Prosecutor,” the public is bound to conclude that the latter individual supervises the former. This is misleading where the former is a deputy district attorney and the latter is a deputy city attorney. In at least one California county (Los Angeles), results of judicial elections have been skewed by use of inventive ballot designations, such as “child molestation prosecutor,” while the actual title is “deputy district attorney.” There is the potential of such devices being adopted by candidates elsewhere. The resolution also settles problem arising from former occupations and part time professions. The Solution: The proposed resolution would remove from §13107 references to judicial elections and create §13107.1, to address all aspects of ballot designations in such elections. The new section would set no word limit on the designations of city, county, district, state, or federal judicial or quasi-judicial office-holders, or attorneys for governmental entities; would require that actual job titles be used; and would require a geographical reference. IMPACT STATEMENT This proposed resolution does not impact any other law, statute or rule except to the extent of rendering §13107 inapplicable to judicial elections and requiring revision of secretary of state guidelines contained in §§20712-20714. CURRENT OR PRIOR RELATED LEGISLATION Not known.

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AUTHOR AND/OR PERMANENT CONTACT: Jo-Ann W. Grace, Metropolitan News Company, 210 S. Spring Street, Los Angeles CA 90012, (213) 346-0033, jo-ann@mnc.net RESPONSIBLE FLOOR DELEGATE: Jo-Ann Grace

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RESOLUTION 07-02-2015

DIGEST Police Records: Forcing Disclosure of Confidential Police Disciplinary Records This resolution amends Government Code sections 832.5 and 832.7 to force disclosure of confidential police disciplinary records. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: Similar to Resolutions 06-06-2007 and 03-09-2012, which were approved in principle. Reasons: This resolution amends Government Code sections 832.5 and 832.7 to force disclosure of confidential police disciplinary records. This resolution should be disapproved because sufficient access to police disciplinary records already exists. Evidence Code sections 1043 and 1045 provide the procedural mechanism for access to a peace or custodial officer’s personnel records, including access to records of complaints, investigations of complaints, and disciplinary records. Rather than granting unfettered access by any person or organization to an employee’s confidential personnel file, the Evidence Code permits access but balances the need for information against the relevance of the information sought. Furthermore, access is limited to parties where the court finds the information relevant to the litigation, thereby curbing the release of sensitive information to third parties. However, the resolution mandates the automatic release of confidential information such as the contents of an officer’s disciplinary file, including the officer’s name as well as the complainant’s name and address, unless the complainant knew enough to request that such information be kept confidential. This information would also be subject to a Public Records Act request. While the resolution’s objective is to create open access by of non-parties, such as the press, to peace officers’ personnel files, the resolution goes too far because there are no restrictions or limitations on access. Nothing in Copley Press v. Superior Court (2006) 39 Cal.4th 1272 prohibits access to documents and other information concerning sustained complaints of police misconduct and discipline. Rather, Copley merely rejected the unrestricted access to such confidential information not provided by the Evidence Code. While the public’s and media’s need for certain information is an important concern, sensitive information – such as confidential personnel and disciplinary records – should not be made readily available without the court’s balance of the need versus the need for confidentiality.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Government Code sections 832.5 and 832.7 to read as follows: §832.5 It is the intent of the Legislature in enacting this legislation to overturn the California 1 Supreme Court decision in Copley Press vs. Superior Court 39 Cal 4th 1272 (2006) and to 2 restore public access to peace officer records and to restore public access to meetings and 3 hearings that were open to the public prior to the Copley decision. 4 (a)(1) Each department or agency in this state that employs peace officers shall establish 5 a procedure to investigate complaints by members of the public against the personnel of these 6 departments or agencies, and shall make a written description of the procedure available to the 7 public. 8 (2) Each department or agency that employs custodial officers, as defined in Section 9 831.5, may establish a procedure to investigate complaints by members of the public against 10 those custodial officers employed by these departments or agencies, provided however, that any 11 procedure so established shall comply with the provisions of this section and with the provisions 12 of Section 832.7. 13 (b) Complaints and any reports or findings relating to these complaints shall be retained 14 for a period of at least five years. All complaints retained pursuant to this subdivision may be 15 maintained either in the peace or custodial officer's general personnel file or in a separate file 16 designated and maintained by the department or agency as provided by department or agency 17 policy, in accordance with all applicable requirements of law. However, prior to any official 18 determination regarding promotion, transfer, or disciplinary action by an officer's employing 19 department or agency, the complaints described by subdivision (c) shall be removed from the 20 officer's general personnel file and placed in a separate file designated by the department or 21 agency, in accordance with all applicable requirements of law. 22 (c) Complaints by members of the public that are determined by the peace or custodial 23 officer's employing agency to be frivolous, as defined in Section 128.5 of the Code of Civil 24 Procedure, or unfounded or exonerated, or any portion of a complaint that is determined to be 25 frivolous, unfounded, or exonerated, shall not be maintained in that officer's general personnel 26 file. However, these complaints shall be retained in other, separate files that shall be deemed 27 personnel records for purposes of the California Public Records Act (Chapter 3.5 (commencing 28 with Section 6250) of Division 7 of Title 1 of the Government Code) and Section 1043 of the 29 Evidence Code. 30 (1) Management of the peace or custodial officer's employing agency shall have access to 31 the files described in this subdivision. 32 (2) Management of the peace or custodial officer's employing agency shall not use the 33 complaints contained in these separate files for punitive or promotional purposes except as 34 permitted by subdivision (f) of Section 3304 of the Government Code. 35 (3) Management of the peace or custodial officer's employing agency may identify any 36 officer who is subject to the complaints maintained in these files which require counseling or 37 additional training. However, if a complaint is removed from the officer's personnel file, any 38 reference in the personnel file to the complaint or to a separate file shall be deleted. 39 (d) As used in this section, the following definitions apply: 40

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(1) "General personnel file" means the file maintained by the agency containing the 41 primary records specific to each peace or custodial officer's employment, including evaluations, 42 assignments, status changes, and imposed discipline. 43 (2) "Unfounded" means that the investigation clearly established that the allegation is not 44 true. 45 (3) "Exonerated" means that the investigation clearly established that the actions of the 46 peace or custodial officer that formed the basis for the complaint are not violations of law or 47 department policy. 48 (4) "Department" or "agency" means the particular department or agency that directly 49 employs peace or custodial officers and which has established a procedure to investigate 50 complaints by members of the public against its personnel pursuant to subdivision (a) and that is 51 primarily responsible for the initial investigation of the complaints and the maintenance of its 52 investigative records. The term does not include any other governmental body that reviews the 53 investigations, findings or employment actions of a department or agency. 54 55 § 832.7 56 (a) Peace officer or custodial officer personnel records and records maintained by any 57 state or local agency pursuant to Section 832.5, or information obtained from these records, are 58 confidential and shall not be disclosed in any criminal or civil proceeding except by discovery 59 pursuant to Sections 1043 and 1046 of the Evidence Code. This section shall not apply to 60 investigations or proceedings concerning the conduct of peace officers or custodial officers, or an 61 agency or department that employs those officers, conducted by a grand jury, a district attorney's 62 office, or the Attorney General's office. 63 (b) Notwithstanding subdivision (a), a department or agency shall release to the 64 complaining party a copy of his or her own statements at the time the complaint is filed. 65 (c) Notwithstanding subdivision (a), a department or agency that employs peace or 66 custodial officers may disseminate data regarding the number, type, or disposition of complaints 67 (sustained, not sustained, exonerated, or unfounded) made against its officers if that information 68 is in a form which does not identify the individuals involved. 69 (d) Notwithstanding subdivision (a), a department or agency that employs peace or 70 custodial officers may release factual information concerning a disciplinary investigation if the 71 officer who is the subject of the disciplinary investigation, or the officer's agent or representative, 72 publicly makes a statement he or she knows to be false concerning the investigation or the 73 imposition of disciplinary action. Information may not be disclosed by the peace or custodial 74 officer's employer unless the false statement was published by an established medium of 75 communication, such as television, radio, or a newspaper. Disclosure of factual information by 76 the employing agency pursuant to this subdivision is limited to facts contained in the officer's 77 personnel file concerning the disciplinary investigation or imposition of disciplinary action that 78 specifically refute the false statements made public by the peace or custodial officer or his or her 79 agent or representative. 80 (e) Notwithstanding subdivision (a), with respect to each complaint charge, disciplinary 81 matter, or internal investigation that results in either discipline, a sustained complaint or charge, 82 or a finding that an officer's conduct was out of policy, a department or agency that employs 83 peace or custodial officers shall release: 84 (1) The name and badge number of the subject officer; 85

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(2) The name and current address of the complainant, unless the complainant requests it 86 be kept confidential; 87 (3) A summary of the factual allegations contained in the complaint or other charging 88 document; 89 (4) The charges brought against the officer; 90 (5) The factual findings with respect to the conduct at issue; 91 (6) The discipline imposed or corrective action taken. 92 (f) Notwithstanding subdivision (a), in cases in which a civilian review board or other 93 governmental body outside the department or agency recommends imposition of discipline or 94 makes or recommends a finding that an officer's conduct was out of policy or that a complaint 95 was founded, and such finding is overturned or such recommendation not followed by the 96 department or agency that employs the peace officer, the department or agency may in its 97 discretion release any information already released by the outside body as well as a summary of 98 the grounds for overturning the outside body's finding or not following its recommendation. 99 (g)(1) The department or agency shall provide written notification to the complaining 100 party of the disposition of the complaint within 30 days of the disposition. 101 (2) The notification described in this subdivision shall not be conclusive or binding or 102 admissible as evidence in any separate or subsequent action or proceeding brought before an 103 arbitrator, court, or judge of this state or the United States. 104 (h) Nothing in this section shall affect the discovery or disclosure of information 105 contained in a peace or custodial officer's personnel file pursuant to Section 1043 of the 106 Evidence Code. 107 (i)Information disclosable pursuant to this section shall be made available upon request 108 pursuant to the Section 6250 et seq. of the Government Code. 109

(Proposed new language underlined; language to be deleted stricken) PROPONENT: The Bar Association of San Francisco STATEMENT OF REASONS The Problem: Penal Code sections 832.5 and 832.7, as interpreted by the recent California Supreme Court decision in Copley Press vs. Superior Court 39 Cal 4th 1272 (2006), prevent public access to information about sustained complaints about police misconduct and discipline that flows from such misconduct. The Copley Press decision has also called into question the legality of public civilian review boards and has been used by police officer associations to challenge oversight agencies that have been in place for decades. Under current law, among public employees, only peace officers are granted such protections. Under current state law as interpreted by the Copley Press decision, the public is foreclosed from learning about sustained misconduct and discipline of police and correctional officers. The impact of this decision is far reaching. It prevents the public and press from learning about misconduct by public officials, evaluating the extent to which officers that engage in misconduct are promoted, reassigned, or disciplined, and will significantly undermine efforts to achieve police accountability. Dissemination of information serves as a deterrent against misconduct and generates public confidence in the ability of government to hold police accountable when

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necessary. The case has also been used to close down access to records or limit the scope of civilian oversight agencies throughout the state in cities including Oakland, Berkeley, Los Angeles, and San Francisco. The Solution: This resolution supports legislation in the California legislature aimed at overturning the Copley Press decision and providing greater access to information related to police misconduct. IMPACT STATEMENT This resolution does not affect any other statute or case law. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Mary Vail, 4406 Park Blvd. Oakland, CA 94602,4406vailcat@comcast.net, 510. 599.1779 RESPONSIBLE FLOOR DELEGATE: Mary Vail

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RESOLUTION 07-03-2015

DIGEST Taxation: Assets Considered for Compromise of California Tax Liabilities Amends Revenue and Taxation Code section 19443 to clarify that certain non-taxable assets are not considered when granting a compromise of California tax liabilities. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Revenue and Taxation Code section 19443 to clarify that certain non-taxable assets are not considered when granting a compromise of California tax liabilities. This resolution should be approved in principle because it would ensure that California’s Offer in Compromise (“OIC”) program, which is run through the Franchise Tax Board (“FTB”), is administrated in the same manner as its federal counterpart with the Internal Revenue Service, and promote effective tax administration. When taxpayers cannot pay their full outstanding tax liability, the FTB, through its OIC program, has the ability to grant an OIC in situations where collection of the full tax liability is doubtful, and the cost of collection to the State is increased. In such situations, the FTB may propose an OIC, so that the FTB may collect as much of the tax liability as possible from the taxpayer, and grant relief from the balance the taxpayer is unable to pay. When determining whether to grant or deny an OIC, the FTB must consider a taxpayer’s assets. However, Revenue and Taxation Code section 19443 does not specify which assets are includable in a determination by the FTB to accept an offer in compromise. Certain assets, including damages awards from personal injury and/or wrongful death settlements, and death benefits, are not considered taxable income for purposes of determining a taxpayer’s liability. Accordingly, since these “assets” are not includable in income, and therefore not taxable, they should not be included in an OIC analysis by the FTB. TEXT OF RESOLUTION RESOLVED, that the Conference of California Bar Association recommends that legislation be sponsored to amend Revenue and Taxation Code section 19443 as follows: §19443 (a) (1) The Executive Officer and Chief Counsel of the Franchise Tax Board, jointly, or 1 their delegates, may compromise any final tax liability in which the reduction of tax is seven 2 thousand five hundred dollars ($7,500) or less. 3 (2) Except as provided in paragraph (3), the Franchise Tax Board, upon recommendation 4 by its executive officer and chief counsel, jointly, may compromise a final tax liability involving 5

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a reduction in tax in excess of seven thousand five hundred dollars ($7,500). Any 6 recommendation for approval of an offer in compromise that is not either approved or 7 disapproved by the Franchise Tax Board, itself, within 45 days of the submission of the 8 recommendation shall be deemed approved. 9 (3) The Franchise Tax Board, itself, may by resolution delegate to the executive officer 10 and the chief counsel, jointly, the authority to compromise a final tax liability in which the 11 reduction of tax is in excess of seven thousand five hundred dollars ($7,500) but less than ten 12 thousand dollars ($10,000). 13 (b) For purposes of this section, "a final tax liability" means any final tax liability arising 14 under Part 10 (commencing with Section 17001) or Part 11 (commencing with Section 23001) or 15 related interest, additions to tax, penalties, or other amounts assessed under this part. 16 (c) For an amount to be compromised under this section, the following conditions shall 17 exist: 18 (1) The taxpayer shall establish that the: 19 (A) Amount offered in payment is the most that can be expected to be paid or collected 20 from the taxpayer's present assets or income, and 21 (B) Taxpayer does not have reasonable prospects of acquiring increased income or assets 22 that would enable the taxpayer to satisfy a greater amount of the liability than the amount 23 offered, within a reasonable period of time. 24 (C) The taxpayer’s current assets shall not include items that are generally exempt from 25 income tax, including but not limited to death benefits paid by reason of death (except as 26 provided in Section 17132.5), an award of damages (other than punitive damages) received 27 (whether by suit or agreement and whether as lump sums or as periodic payments) on account of 28 personal physical injuries or physical sickness, or an award of damages (other than punitive 29 damages) received (whether by suit or agreement and whether as lump sums or as periodic 30 payments) on account of a wrongful death action of the taxpayer’s spouse or a person on whom 31 the taxpayer was dependent. 32 (2) The Franchise Tax Board shall have determined that acceptance of the compromise is 33 in the best interest of the state. 34 (d) A determination by the Franchise Tax Board that it would not be in the best interest of 35 the state to accept an offer in compromise in satisfaction of a final tax liability shall not be 36 subject to administrative appeal or judicial review. 37 (e) When an offer in compromise is either accepted or rejected, or the terms and 38 conditions of a compromise agreement are fulfilled, the Franchise Tax Board shall notify the 39 taxpayer in writing. 40 (f) In the case of a joint and several liability, the acceptance of an offer in compromise 41 from one liable spouse shall not relieve the other spouse from paying the entire liability. 42 However, the amount of the liability shall be reduced by the amount of the accepted offer. 43 (g) Whenever a compromise of tax or penalties or total tax and penalties in excess of five 44 hundred dollars ($500) is approved, there shall be placed on file for at least one year in the office 45 of the Executive Officer of the Franchise Tax Board a public record with respect to that 46 compromise. The public record shall include all of the following information: 47 (1) The name of the taxpayer. 48 (2) The amount of unpaid tax, and related penalties, additions to tax, interest, or other 49 amounts involved. 50 (3) The amount offered. 51

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(4) A summary of the reason why the compromise is in the best interest of the state. 52 The public record shall not include any information that relates to any trade secret, patent, 53 process, style of work, apparatus, business secret, or organizational structure, that if disclosed, 54 would adversely affect the taxpayer or the national defense. No list shall be prepared and no 55 releases distributed by the Franchise Tax Board in connection with these statements. 56 (h) Any compromise made under this section may be rescinded, all compromised 57 liabilities may be reestablished (without regard to any statute of limitations that otherwise may 58 be applicable), and no portion of the amount offered in compromise refunded, if either of the 59 following occurs: 60 (1) The Franchise Tax Board determines that any person did any of the following acts 61 regarding the making of the offer: 62 (A) Concealed from the Franchise Tax Board any property belonging to the estate of any 63 taxpayer or other person liable for the tax. 64 (B) Received, withheld, destroyed, mutilated, or falsified any book, document, or record 65 or made any false statement, relating to the estate or financial condition of the taxpayer or other 66 person liable for the tax. 67 (2) The taxpayer fails to either: 68 (A) Comply with any of the terms and conditions relative to the offer. 69 (B) File subsequent required returns and pay subsequent final tax liabilities within 20 70 days after the Franchise Tax Board issues notice and demand to the person stating that the 71 continued failure to file or pay the tax may result in rescission of the compromise. 72 (i) Notwithstanding any other provision of this section, if the Franchise Tax Board 73 determines that any portion of an application for an offer in compromise or installment 74 agreement submitted under this section or Section 19008 meets the requirements of clause (i) or 75 (ii) of Section 6702(b)(2)(A) of the Internal Revenue Code, as modified by Section 19179, then 76 the Franchise Tax Board may treat that portion as if it were never submitted and that portion 77 shall not be subject to any further administrative or judicial review. 78 (j) This section shall become operative on the effective date of Chapter 931 of the 79 Statutes of 1999 without regard to the taxable year at issue. 80

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Contra Costa County Bar Association STATEMENT OF REASONS The Problem: Offers in compromise help to promote effective tax administration. In some situations, collecting the full outstanding tax liability may prevent a taxpayer from complying voluntarily, or it may cause a taxpayer financial hardship. Both the Internal Revenue Service, and the California Franchise Tax Board (“FTB”), have an offer in compromise (“OIC”) program. The FTB has an interest in granting an OIC in situations in which collection of the full tax liability is doubtful and the cost of collection is therefore increased. Existing California law provides that a taxpayer’s assets, or anticipated future increase in assets, must be considered in a determination by the FTB to grant, or deny, an offer in compromise of outstanding tax liabilities by a taxpayer.

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The law needs to be clarified with respect to which assets are includable in the FTB’s determination of whether or not to grant a taxpayer’s offer in compromise. With respect to personal injury and wrongful death awards, current California law complies with Internal Revenue Code (“IRC”) section 104(a) which states that damages received “on account of personal physical injuries or physical sickness” are not taxable. With respect to death benefits received, current California law complies with IRC section 101(a) which states “gross income does not include amounts received … under a life insurance contract, if such amounts are paid by reason of the death of the insured.” Revenue and Taxation Code section 19443 does not specify which assets are includable in a determination by the FTB to accept an offer in compromise. Since the assets discussed herein above are not includable in income, and therefore not taxable, they should not be included in an offer in compromise analysis by the FTB. Under current law, a taxpayer is at risk of depleting all, or part, of personal injury damages, wrongful death damages, or death benefits received in connection with the acceptance of an offer in compromise. This violates public policy concerns surrounding personal injury and wrongful death damages/awards, and/or death benefits, which are generally excluded from taxation. With respect to certain death benefits, there is strong public policy that favors encouraging families to protect themselves financially from the unexpected loss of a provider. With respect to personal injury and wrongful death settlements/awards, there is strong public policy that supports the notion injured plaintiffs should not be overly burdened by taxation of the damages/settlements they receive. In many instances, the damages/settlements of an injured plaintiff need to be preserved because, once depleted, the taxpayer may not be able to replenish their income and/or assets by working or otherwise. The Solution: This resolution would clarify that certain personal injury awards, wrongful death awards, and death benefits are not includable as an asset in an analysis of whether a taxpayer qualifies for and should receive acceptance of his/her offer in compromise by the FTB. The statute should be revised so that personal injury awards/settlements and certain death benefits are not includable in the taxpayer’s assets for purposes of determining whether an offer in compromise should be granted. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known.

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AUTHOR AND/OR PERMANENT CONTACT: Christina Weed, Law Offices of Chastity A. Schults, 2940 Camino Diablo, Suite 320, Walnut Creek, CA 94597, Phone: (925) 274-4608, christina@schultslaw.com RESPONSIBLE FLOOR DELEGATE: Christina Weed

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RESOLUTION 07-04-2015 DIGEST Public Utilities: Election of Public Utilities Commission President Amends Public Utilities Code sections 305, 305.5, 307, and 308 to require that the President of the California Public Utilities Commission be elected by fellow Commissioners rather than appointed by the Governor, and limits the President’s authority over the staff of the Commission. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found Reasons: This resolution amends Public Utilities Code sections 305, 305.5, 307, and 308 to require that the President of the California Public Utilities Commission be elected by fellow Commissioners, rather than appointed by the Governor and limits the President’s authority over the staff of the Commission. This resolution should be disapproved because changing the manner in which the president is elected will not result in the changes that the proponent seeks, and limiting the president’s authority over staff removes important controls required for the appropriate administration of the Commission. In the statement of reasons, the proponent references a series of occurrences that has made the Public Utilities Commission (Commission) a target of significant and likely well-earned bad press over the past several years, which include a natural gas explosion in San Bruno which killed eight people, and the closure of a nuclear power plant in Southern California at a significant cost to rate payers. The proponent argues that the power of the governor to appoint the president of the Commission dilutes the insulation of the Commission from political influence because ‘[t]he Commission President now responds directly to the Governor's office. The President's ability to assign proceedings and direct staff gives that role immense power over the Commission's agenda.” There is no nexus between the Governor’s appointment of the Commission President and the Commission’s poor decisions with regard to pipeline safety oversight, decommissioning nuclear facilities, or other actions taken by the Commission. Nor does the proponent provide helpful evidence that the Governor’s agenda influenced the Commission President’s presumed malfeasance. Citing “[r]ecent evidence, including the release of 65,000 emails from Pacific Gas & Electric Company between regulators and the utility, shows that the regulated utilities may have exercised undue influence through the Commission President's office,” in the statement of reasons, the proponent suggests that the Governor is indirectly responsible, or at least in collusion with the Commission and Commission President on the activities, without any basis. Moreover, there is no evidence that by changing the manner in which the Commission President is selected, past decisions would have been made differently and future decisions will be made better.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend Public Utilities Code sections 305, 305.5, 307, and 308 to read as follows: §305 The Governor shall designate a president of the commission from among the members of 1 the commission. The president shall direct the executive director, the attorney, and other staff of 2 the commission, except for the staff of the division described in Section 309.5, in the 3 performance of their duties, in accordance with commission policies and guidelines. The 4 president shall preside at all meetings and sessions of the commission. 5 6 §305.5 7 (a) The commission shall direct the executive director, the attorney, and other staff of the 8 commission, except for the staff of the division described in Section 309.5, in performance of 9 their duties. 10 (b) The commission may delegate specific management and internal oversight functions 11 to committees composed of two or more commissioners. Committees shall meet regularly with 12 staff and shall report to the commission for additional guidance or approval of decisions 13 pertaining to the operations of the commission. 14 (c) A meeting conducted pursuant to subdivision (b) is exempt from the Bagley-Keene 15 Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of 16 Division 3 of Title 2 of the Government Code). 17 (d) The commission shall vote in an open meeting on the assignment or reassignment of 18 any proceeding to one or more commissioners. 19 20 §307 21 (a) The commission may appoint as attorney to the commission an attorney at law of this 22 state, who shall hold office during the pleasure of the commission. 23 (b) The attorney shall represent and appear for the people of the State of California and 24 the commission in all actions and proceedings involving any question under this part or under 25 any order or act of the commission. If directed to do so by the president, except as otherwise 26 directed by vote of the commission, the attorney shall intervene, if possible, in any action or 27 proceeding in which any such question is involved. 28 (c) The attorney shall commence, prosecute, and expedite the final determination of all 29 actions and proceedings directed or authorized by the president, except as otherwise directed or 30 authorized by vote of the commission, advise the commission and each commissioner, when so 31 requested, in regard to all matters in connection with the powers and duties of the commission 32 and the members thereof, and generally perform all duties and services as attorney to the 33 commission that the president, or vote of the commission, commission may require of him. him 34 or her. 35 36 §308 37 (a) The commission shall appoint an executive director, who shall hold office during its 38 pleasure. The executive director shall be responsible for the commission’s executive and 39

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administrative duties and shall organize, coordinate, supervise, and direct the operations and 40 affairs of the commission and expedite all matters within the commission’s jurisdiction. 41 (b) The executive director shall keep a full and true record of all proceedings of the 42 commission, issue all necessary process, writs, warrants, and notices, and perform such any other 43 duties as the president, or vote of the commission, prescribes. The president commission 44 prescribes. The commission may authorize the executive director to dismiss complaints or 45 applications when all parties are in agreement thereto, in accordance with rules that the 46 commission may prescribe. 47 (c) The commission may appoint assistant executive directors who may serve warrants 48 and other process in any county or city and county of this state. 49

(Proposed new language underlined; language to be deleted stricken) PROPONENT: National Lawyers Guild – San Francisco Bay Area Chapter STATEMENT OF REASONS The Problem: The California Public Utilities Commission, established in 1911, regulates privately owned electric, natural gas, telecommunications, water, railroad, rail transit, and passenger transportation companies. There are five commissioners, appointed by the Governor for staggered six year terms and confirmed by the Senate. The Commission headquarters are in San Francisco. The headquarters location and the staggered six-year terms are intended to insulate the Commission from influence by the executive and legislative branches of state government. Historically, the president of the Commission was one of the five Commissioners, elected by a majority. In 2000, the Legislature passed Senate Bill 33, codified into law as Public Utility Code section 305, which required the Governor to appoint the president and required the Commission staff to report to the president rather than to the Commission as a whole. This power of appointment has diluted the insulation of the Commission from political influence. The Commission President now responds directly to the Governor's office. The President's ability to assign proceedings and direct staff gives that role immense power over the Commission's agenda. The Solution: The Commission has dealt with major issues in the last several years including a natural gas explosion in San Bruno which killed eight people, the closure of a nuclear power plant in southern California and the rise of ride-sharing services such as Uber and Lyft. Commission decisions on all of these issues have been heavily influenced by the Governor's office. Recent evidence, including the release of 65,000 emails from Pacific Gas & Electric Company between regulators and the utility, shows that the regulated utilities may have exercised undue influence through the Commission president's office.

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Pacific Gas & Electric used its influence with the Commission President and senior staff members to choose a judge for a proceeding involving billions of dollars for gas transmission upgrades needed after the San Bruno explosion. A senior vice-president of Southern California Edison secretly met with the Commission President in Warsaw, Poland to establish a settlement favorable to Southern California Edison involving the closure of the San Onofore Nuclear Generating Station. This resolution would remove the authority of the Governor to appoint the president, remove the requirement that Commission staff report directly to the president and would return the election of the president to the Commission itself. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Senator Mark Leno of San Francisco has introduced SB-215 and Senator Jerry Hill of San Bruno has introduced SB-48, both of which are related to this resolution. AUTHOR AND/OR PERMANENT CONTACT: Richard P. Koch, 268 Bush St. #3237, San Francisco, CA 94104 (415) 397-1060, Fax (415) 397-3077, rpkoch1@sbcglobal.net RESPONSIBLE FLOOR DELEGATE: Richard P. Koch

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RESOLUTION 07-05-2015 DIGEST Attorney Discipline: Staying Bar Disciplinary Proceedings During Parallel Civil Litigation Amends California Business and Professions Code section 6085 to allow abatement of a State Bar investigation or disciplinary hearing when the member is involved in a current civil case. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: Similar to Resolution 04-06-2002, which was approved in principle. Reasons: This resolution amends California Business and Professions Code section 6085 to allow abatement of a State Bar investigation or disciplinary hearing when the member is involved in a current civil case. This resolution should be disapproved because it markedly curtails the sound discretion of the State Bar Court by making a stay of the disciplinary proceedings a right any time a member is also involved in concurrent civil litigation. Unlike a parallel criminal investigation, where self-incrimination and criminal punishment may interfere in the member’s practical ability to defend him or herself, a concurrently pending civil suit poses no good cause to abate or delay the State Bar from investigating a complaint against the member and taking disciplinary action as soon as practicable. As the resolution is written, the proposal would provide grounds for stay if the lawyer, say a litigator, is involved in any concurrent litigation regardless of whether it is related to the State Bar claim, and irrespective whether the attorney is a party or simply representing a party. The lawyer does not even have to be a party or the attorney to the party, so long as some “parallel or concurrent civil proceeding is being maintained.” Further, civil “proceedings” is very broad, as it could include arbitrations, mediations, lawsuits, writs, appeals and enforcement actions. Even if the language is construed as only concerning civil proceedings related to the charges pending against the respondent lawyer, a retaliatory counter-suit filed by the lawyer would arguably support, under the wording, a prima facie stay of the State Bar proceedings and trial. Thus, in multiple respects, the language is overbroad, particularly since stays would be favored absent an extraordinary situation, rather than extraordinary circumstance warranting a stay of the disciplinary proceedings by reason of related outside litigation. The proposed amendment would easily frustrate disciplinary proceedings from going forth. It would allow lawyers to continue to practice by shrugging off into the indefinite future what may be a needed intervention by this regulatory body. The resolution would effectively impede the State Bar’s ability to fulfill its responsibility of promptly addressing attorney misconduct, and protecting the public and dignity of the profession.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Business and Professions Code section 6085 to read as follows: §6085 Any person complained against shall be given fair, adequate and reasonable notice and 1 have a fair, adequate and reasonable opportunity and right: 2 (a) To defend against the charge by the introduction of evidence. 3 (b) To receive any and all exculpatory evidence from the State Bar after the initiation of a 4 disciplinary proceeding in State Bar Court, and thereafter when this evidence is discovered and 5 available. This subdivision shall not require the disclosure of mitigating evidence. 6 (c) To be represented by counsel. 7 (d) To examine and cross-examine witnesses. 8 (e) To exercise any right guaranteed by the State Constitution or the United States 9 Constitution, including the right against self-incrimination. 10 (f) To request a stay or abatement of a State Bar investigation or hearing if a concurrent 11 or parallel civil proceeding is being maintained. Such a request will be granted unless there are 12 extraordinary circumstances involving great ongoing harm to the client or public at large. 13 He or she shall also have the right to the issuance of subpoenas for attendance of 14 witnesses to appear and testify or produce books and papers, as provided in this chapter. 15

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Beverly Hills Bar Association STATEMENT OF REASONS The Problem: Often the State Bar’s Office of Trial counsel will abate disciplinary action until other matters are resolved, however a stay or abatement can be arbitrarily or capriciously denied. Valuable State Bar resources should not be squandered in investigatory activity or prosecutorial activity when all the information needed can be easily obtained as a result of civil discovery. The Solution: This resolution will create a formalized right to obtain an abatement. Some plaintiffs involved in legal malpractice cases will attempt to exert additional leverage or pressure on lawyers by bringing parallel complaints at the State Bar when there is existing pending civil litigation for acts of professional negligence or allegations of breach of fiduciary duties. It is manifestly unfair to compel a lawyer to defend in two forums concurrently. There are different standards of proof at the State Bar and in the civil arena. Further a lawyer has an affirmative duty of cooperation, in State Bar matters pursuant to Business and Professions Code section 6068 (1), which may conflict with tactical decisions or strategy in the civil area. It is manifestly unfair that a lawyer’s assertion of his or her right to litigate the merits of a civil claim is impaired because she is constrained or hobbled by a simultaneous State Bar Complaint. An attorney, just like any other citizen, has a right to litigate in our civil justice system. That right should not be encumbered by ramifications that do not tether other civil litigants. The

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existence of this type of mirror leverage creates an uneven playing field, which ought to offend everyone’s basic notions of fair play and justice. This was brought to the Conference in 2001 and 2002 (we believe), and on both occasions it was approved. The State Bar’s lobbyist apparently declined to promote it in Sacramento, however at that time, abatements were easier to obtain. This has now dramatically changed. The author is aware of a State Bar Discipline case submitted on March 15, 2015, charging the attorney with violations of Rule 3-310 (C)(1), and Rule 3-310(C)(2) or the failure to obtain a consent in a conflict of interest case. The underlying civil litigation for malpractice is pending, yet the Office of Trial Counsel, when asked for an abatement, refused to grant it to counsel for the attorney. Further details are available from the proponent. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Diane Karpman, Karpman & Associates: 1339 North Wetherly Drive, Los Angeles, CA 90069, Phone (310) 887-3900, karpethics@aol.com. Michael R. Sohigian, Law Offices of Michael R. Sohigian, 10940 Wilshire Boulevard, 18th Floor, Los Angeles, CA 90024, Phone (310) 914-2494, Msohigian@mrslaw.net. RESPONSIBLE FLOOR DELEGATE: Diane Karpman/Michael R. Sohigian

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RESOLUTION 07-06-2015 DIGEST Civil: Email Service to Tenant Allowed for Notice of Belief of Abandonment of Property Amends Civil Code section 1983 to allow landlords to serve tenants by email with a notice of belief of abandonment of personal property. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Civil Code section 1983 to allow landlords to serve tenants by email with a notice of belief of abandonment of personal property. This resolution should be disapproved because email alone is not a reliable way of ensuring that a tenant receives the landlord’s notice. Civil Code section 1983 requires that before a landlord disposes of a tenant’s personal property, the landlord must give the tenant written notice and an opportunity to reclaim that property. That section currently requires that notice be delivered to the tenant personally, or by mail to the tenant’s last known address and to the premises vacated by the tenant. Further, if the landlord has reason to believe the tenant will not receive the notice at their last known address, the landlord must also mail the notice to any other known address where the tenant may reasonably be expected to receive notice. It is not enough for the landlord to simply put the notice in the mail and hope it gets to the tenant. The landlord must make the effort to reasonably ensure the tenant gets the notice through personal delivery or multiple mailings. Although Civil Code section 1983, subdivision (c), allows the landlord to email the notice, in addition to personal delivery or mailing, that section does not allow notice to be sent solely by email. The proposed revision suggests that a landlord could send the notice by email alone, and start the tenant’s response time from the date of the email. Because emails are often lost, misplaced, or misfiled because of spam filters, and because not everyone checks their email on a regular basis, allowing notice by email alone, and beginning a tenant’s response time based on that email, would unfairly infringe on the tenant’s property rights. This resolution would allow landlords to avoid the due process requirements that protect tenants’ property rights, without any reasonable basis for doing so

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Civil Code section 1983 to read as follows: §1983

(a) Where personal property remains on the premises after a tenancy has terminated and 1 the premises have been vacated by the tenant, the landlord shall give written notice to the tenant 2 and to any other person the landlord reasonably believes to be the owner of the property. If the 3 property consists of records, the tenant shall be presumed to be the owner of the records for the 4 purposes of this chapter. 5

(b) The notice shall describe the property in a manner reasonably adequate to permit the 6 owner of the property to identify it. The notice may describe all or a portion of the property, but 7 the limitation of liability provided by Section 1989 does not protect the landlord from any 8 liability arising from the disposition of property not described in the notice except that a trunk, 9 valise, box, or other container which is locked, fastened, or tied in a manner which deters 10 immediate access to its contents may be described as such without describing its contents. The 11 notice shall advise the person to be notified that reasonable costs of storage may be charged 12 before the property is returned, where the property may be claimed, and the date before which 13 the claim must be made. The date specified in the notice shall be a date not less than 15 days 14 after the notice is personally delivered or sent by email or, if mailed, not less than 18 days after 15 the notice is deposited in the mail. 16 (c) The notice shall be personally delivered to the person to be notified or sent by first-17 class mail, postage prepaid, to the person to be notified at his or her last known address and, if 18 there is reason to believe that the notice sent to that address will not be received by that person, 19 also to any other address known to the landlord where the person may reasonably be expected to 20 receive the notice. If the notice is sent by mail to the former tenant, one copy shall be sent to the 21 premises vacated by the tenant. If the former tenant provided the landlord with the tenant’s email 22 address, the landlord may also send the notice by email. 23

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County

STATEMENT OF REASONS The Problem: Civil Code section 1983 (c) provides that a notice of belief of abandonment may be emailed to a tenant but Civil Code section 1983 (b) is silent as to the notice period if emailed. Persons serving a notice of belief of abandonment are uncertain whether the notice period is 15 days, for personal delivery, or 18 days for mailing. Since email delivery does not take several days to be received, as is the case with postal delivery, it makes more sense to apply the same notice period for personal delivery. The Solution: This amendment would provide that the notice period of 15 days that is applicable if the notice was personally delivered applies to service by email.

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IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: David R. Moore, Moore & Skiljan, 7700 El Camino Real, Suite 207, Carlsbad, CA 92009 (760) 944-7794 phone (760) 944-8494 fax davidr@mooreskiljan.com RESPONSIBLE FLOOR DELEGATE: David R. Moore, Esq.

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RESOLUTION 07-07-2015 DIGEST Local Government: Prohibition on Acquisition of Federal Surplus Property Amends Government Code section 54141 and adds section 54145 to prohibit a local agency from receiving surplus military equipment without an affirmative vote of the legislative body of the local agency at a public meeting. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found Reasons: This resolution amends Government Code section 54141 and adds section 54145 to prohibit a local agency from receiving surplus military equipment without an affirmative vote of the legislative body of the local agency at a public meeting. This resolution should be approved in principle because the public should have the right to exercise its voice in the repurposing of federal surplus property, particularly military property, in the furtherance of domestic services. Current law allows certain surplus military and other federal property and equipment to be acquired by local agencies in California without any requirement that the local agency hold a public hearing, or notify the public of the type of equipment or property sought to be acquired by the agency, thereby precluding a public discussion about the need and intended use for it. Requiring local municipal entities such as city councils, county boards of supervisors, school districts, and police departments to add the purchase of surplus military equipment to already public meeting agendas is a small burden on the entities and allows the public access to information, provides the public with an opportunity to ask relevant questions, and positions the local government entities to make thoughtful decisions in the presence of the public, all without compromising safety. This resolution tracks Assembly Bill 36 (Campos) which currently is going through the legislative process. It is similar to Senate Bill 242 (Monning) which was signed into law (Chapter 79, Statutes of 2015). SB 242 requires a school district’s police department to obtain approval from its governing board prior to receiving federal surplus military equipment.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend Government Code section 54141 and to add Government Code section 54145 to read as follows: §54141 As used in this article: 1 (a) “Local agency” means county, city, whether general law or chartered, city and county, 2 town, school district, municipal corporation, or public district district, political subdivision, or 3 any board, commission, or agency thereof, or other local public agency. 4 (b) “United States” includes any department, board, or agency thereof. 5 (c) “State” includes any department or agency thereof. 6 (d) “Legislative body” means a legislative body as defined in Section 54952. 7 8 §54145 9 (a) A local agency shall not receive surplus military equipment pursuant to Section 2576a 10 of Title 10 of the United States Code unless the legislative body of the local agency approves the 11 acquisition at a meeting held pursuant to the Ralph M. Brown Act (Chapter 9 (commencing with 12 Section 54950)). 13 (b) The Legislature finds and declares that this section constitutes a matter of statewide 14 concern, and shall apply to charter cities and charter counties. The provisions of this section shall 15 supersede any inconsistent provisions in the charter of any city, county, or city and county. 16

(Proposed new language underlined; language to be deleted stricken) PROPONENT: National Lawyers Guild – San Francisco Bay Area Chapter STATEMENT OF REASONS The Problem: Current law allows certain surplus military and other federal property and equipment to be acquired by local agencies in California without any requirement that the local agency hold a public hearing or notify the public of the type equipment or property sought to be acquired by the agency or the use to which it will or may be put by the public agency, as there is no requirement for such public disclosure or public input in the federal law that allows distribution of surplus equipment to local agencies. The Solution: The proposed legislation requires all federal surplus property acquisitions by a local agency in California be approved by the governing body of the local agency after a public hearing. This requirement gives citizens of the community the opportunity to express their views on the appropriateness for the community of the proposed acquisition. IMPACT STATEMENT This bill does not affect any other law, statute or rule.

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CURRENT OR PRIOR RELATED LEGISLATION Assembly Member Nora Campos has introduced AB-36 which is related to this resolution. AUTHOR AND/OR PERMANENT CONTACT: Richard P. Koch, 268 Bush St. #3237, San Francisco, CA 94104 (415) 397-1060, Fax (415) 397-3077, rpkoch1@sbcglobal.net RESPONSIBLE FLOOR DELEGATE: Richard P. Koch

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RESOLUTION 07-08-2015

WITHDRAWN BY PROPONENT

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RESOLUTION 07-09-2015 DIGEST Unlawful Detainer: Attorney Fees for Defendants by Local Ordinance Adds Code of Civil Procedure section 1174.1 to allow local governmental entities to authorize attorney fees to prevailing defendants by ordinance. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution adds Code of Civil Procedure section 1174.1 to allow local governmental entities to authorize attorney fees to prevailing defendants by ordinance. This resolution should be disapproved because as framed, it does not address the type of case that it seeks to affect with sufficient specificity, and any such enabling legislation should be in the Civil Code. Civil Code section 1947.7, subdivision (a), articulates the Legislature’s position on Rent Control Ordinances. It states that the operation of local rent stabilization programs can be complex and that disputes often arise with regard to standards of compliance with the regulatory processes of those programs. The intent of the Legislature is to limit the imposition of penalties and sanctions against an owner of residential rental units where that person has attempted in good faith to fully comply with the regulatory processes. Problems in certain cities with frivolous unlawful detainer actions calculated to get rent controlled tenants to abandon their tenancies, should be directly addressed in the enabling legislation for the rent control itself, and articulate reasonable standards for evaluating whether or not a landlord should be sanctioned. Any right a governmental entity that has a rent control ordinance would have to provide for a right to recover attorney fees by a defendant only should be based in the law regulating rent control ordinances, not unlawful detainers. For example, Code of Civil Procedure sections 1174.2 and 1174.21, allow attorney fees to the prevailing party and are based on defenses provided in Civil Code sections 1941 and 1942.4, which relate to habitability issues. The resolution contains no standards, giving local governments and instrumentalities unfettered discretion to provide for an award of attorney fees to any prevailing defendant in an unlawful detainer action, regardless of the reason, including in cases where a landlord realized in good faith there was a procedural flaw in the notice procedure and opted to dismiss the case even where the rent was not being paid. Normally, under Civil Code section 1717, subdivision (b)(2), a dismissal without prejudice would result in no prevailing party if there were a rental agreement with an attorney fee clause. This resolution directly conflicts with this Civil Code provision.

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TEXT OF RESOLUTION RESOLVED, that the Conference of California Bar Association recommends that legislation be sponsored to add Code of Civil Procedure section 1174.1 to read as follows: §1174.1 (a) Nothing in this chapter shall limit or affect the authority of a local government or 1 instrumentality thereof from allowing for recovery of attorney fees to prevailing defendants in 2 unlawful detainer actions. This law overturns Larson v. City and County of San Francisco, 192 3 Cal. App. 4th 1263 (2011). 4

(Proposed new language underlined; language to be deleted stricken.)

PROPONENT: San Mateo County Bar Association STATEMENT OF REASONS The Problem: Cities with a shortage of affordable rental housing stock are witnessing a steep rise in pre-textual, “low-fault evictions.” Low-fault evictions are unlawful detainers with little or no merit that are designed solely to force rent-controlled tenants to defend their tenancies at great financial cost. These evictions are flooding courts and forcing local jurisdictions to react. The City and County of San Francisco, for example, was recently forced to spend $2.3 million of taxpayer dollars to fund nonprofits that defend tenants facing low-fault evictions.

The expansion of Anti-SLAPP laws has caused the perfect storm. Landlords cannot be sued for wrongful eviction for filing meritless unlawful detainer actions. Absent a way for a tenant to recover attorney fees in an action, there is little risk for a landlord. Landlords are shielded by Anti-SLAPP legislation and the litigation privilege and can be forced to defend evictions for things like, cooking late at night, having a documented service animal, and leaving vehicles outside parking lines. In an attempt to address the issue, San Francisco voters passed Proposition M, which allowed for the recovery of attorney fees to prevailing defendants in unlawful detainer actions. The goal was to force landlords to bring only meritorious eviction cases. However, that law was struck down in Larson v. City and County of San Francisco, 192 Cal. App. 4th 1263 (2011). The court held that only the state can expand laws allowing for the recovery of attorney fees. This resolution addresses the Larsen decision, adding to Code of Civil Procedure section 1174.1 to allow local governments to pass laws to allow for recovery of attorney fees in eviction actions. The proposal should be approved because it will protect California’s tenants from low-fault unlawful detainer actions where the landlord’s sole reason is to harass a tenant through litigation if a local government enacts a rule providing for attorney fees. In 2013, the Eviction Defense Collaborative, a non-profit law firm specializing in eviction defense, published a study that documented the significant rise in the number of pre-textual, low-

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fault evictions.1

The report showed that the vast majority of tenants evicted in San Francisco earn below the area median income. Many are even below the federal poverty line. These tenants are likely to be members of single-parent households, low-income and first generation.

The state has elsewhere allowed for recovery of attorney fees in eviction actions to protect vulnerable tenants. In recognition of the economic disparity between mobile home residents and park owners, the Mobilehome Residency Law at Civil Code section 798.85 provides that prevailing parties in mobile home eviction actions may recover attorney fees and costs. The Solution: This proposal would grant cities and counties the authority to pass ordinances to allow prevailing defendants to collect attorney fees in unlawful detainer actions. Cities and counties would still need to pass local legislation, so local bodies would need to go through their legislatives processes to find a legitimate need. The proposed resolution is not meant to burden property owners, but only to limit bad faith evictions to maintain an affordable housing stock for all Californians. IMPACT STATEMENT The proposed resolution does not affect any other law, statute, or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known.

AUTHOR AND/OR PERMANENT CONTACT: Joseph Tobener, Tobener Law Center, 21 Masonic Avenue, Suite A, San Francisco, CA 94118; (415) 504-2165; Stephen Noel Ilg, ILG Legal Office, 555 California Street, Suite 4925, San Francisco, CA 94104; (415)580-2574. RESPONSIBLE FLOOR DELEGATE: Stephen Noel Ilg

1 Eviction Defense Collaborative, 2013 Eviction Report, available at http://evictiondefense.org/wp-content/uploads/2014/07/report.pdf

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RESOLUTION 07-10-2015 DIGEST Education: Liability Provisions for School Activities Amends Education Code section 35330 and deletes section 44808 to eliminate the conflict between the liability provisions of “field trips/excursions” and “school-sponsored activities.” RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found Reasons: This resolution amends Education Code section 35330 and deletes section 44808 to eliminate the conflict between the liability provisions of “field trips/excursions” and “school-sponsored activities”. This resolution should be disapproved because there is no inconsistency between the two code sections and the change could discourage schools from offering field trips and excursions.

There is no inconsistency between Education Code sections 35330 and 44808. Section 35330 generally applies when the students are undertaking a voluntary off-campus activity. For example, this section would apply when there is a class field trip to a local museum, but students are not required to participate in the trip and alternative activities are provided on campus for those students who do not want to go on the trip. Section 44808, by contrast, generally applies in situations where the school either voluntarily elects to look after its students while off-campus (for example, providing bus services) or is requiring students to participate in an off-campus activity. Also, such an amendment might have unforeseen liability impacts on injuries sustained by third parties and on students completing a class assignment outside of school.

The Legislature intentionally established different liability rules for injuries occurring during required, school-sponsored, off-premises activities on the one hand, and voluntary field trips or excursions on the other hand. This conclusion is based on the fact that the two sections were enacted at the same time in 1977. Moreover, courts have not found inconsistencies between the two sections, but instead have identified distinctions between the two sections in resolving claims of liability. In Castro v. Los Angeles Board of Education the court held that the voluntary nature of the event absolves the school district of liability. (Castro v. Los Angeles Board of Education (1976) 54 Cal.App.3d 232.)

If the two sections were to be made alike and the liability presumption for school sponsored activities of no immunity was to be extended to field trips and excursions, this would have a significant chilling effect on schools who would likely reduce if not eliminate the opportunities for students to participate in voluntary off-campus activities in order to avoid potential liability. Additionally, there are other potential unresolved and unintended consequences of eliminating the two standards for different activities. For example, the general rule is that schools are not liable for the injuries that students cause to third parties (Hoff v. Vacaville Unified School

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District (1998) 19 Cal.4th 925, 936; Lackner v. North (2006) 135 Cal.App.4th 1188, 1207), or when a student is injured when completing a class assignment outside of school. (See Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014.) With a presumption in favor of liability, it is unknown how the law in these two situations might be impacted.

TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Education Code sections 35330 and 44808 to read as follows: §35330. Excursions and Field Trips (a) The governing board of a school district or the county superintendent of schools of a 1 county may: 2 (1) Conduct field trips or excursions in connection with courses of instruction or school-3 related social, educational, cultural, athletic, or school band activities to and from places in the 4 state, any other state, the District of Columbia, or a foreign country for pupils enrolled in 5 elementary or secondary schools. A field trip or excursion to and from a foreign country may be 6 permitted to familiarize students with the language, history, geography, natural sciences, and 7 other studies relative to the district’s course of study for pupils. 8 (2) Engage instructors, supervisors, and other personnel to contribute their services over 9 and above the normal period for which they are employed by the district, if necessary, and 10 provide equipment and supplies for the field trip or excursion. 11 (3) Transport by use of district equipment, contract to provide transportation, or arrange 12 transportation by the use of other equipment, of pupils, instructors, supervisors or other 13 personnel to and from places in the state, another state, the District of Columbia, or a foreign 14 country where those excursions and field trips are being conducted, provided that, when district 15 equipment is used, the governing board shall secure liability insurance, and if travel is to and 16 from a foreign country, liability insurance shall be secured from a carrier licensed to transact 17 insurance business in the foreign country. 18 (4) Provide supervision of pupils involved in field trips or excursions by certificated 19 employees of the district. 20 (b) (1) No pupil shall be prevented from making the field trip or excursion because of 21 lack of sufficient funds. To this end, the governing board shall coordinate efforts of community 22 service groups to supply funds for pupils in need. 23 (2) No group shall be authorized to take a field trip or excursion authorized by this 24 section if a pupil who is a member of an identifiable group will be excluded from participation in 25 the field trip or excursion because of lack of sufficient funds. 26 (3) No expenses of pupils participating in a field trip or excursion to other state, the 27 District of Columbia, or a foreign country authorized by this section shall be paid with school 28 district funds. Expenses of instructors, chaperones, and other personnel participating in a field 29 trip or excursion authorized by this section may be paid from school district funds, and the 30 school district may pay from school district funds all incidental expenses for the use of school 31 district equipment during a field trip or excursion authorized by this section. 32 (c) (1) The attendance or participation of a pupil in a field trip or excursion authorized by 33 this section shall be considered attendance for the purpose of crediting attendance for 34 apportionments from the State School Fund in the fiscal year. Credited attendance resulting from 35

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a field trip or excursion shall be limited to the amount of attendance that would have accrued had 36 the pupils not been engaged in the field trip or excursion. 37 (2) Credited attendance shall not exceed 10 schooldays except in the case of pupils 38 participating in a field trip or excursion in connection with courses of instruction, or school-39 related educational activities, and which are not social, cultural, athletic, or school band 40 activities. 41 (d) All persons making the field trip or excursion shall be deemed to have waived all 42 claims against the district, a charter school, or the State of California for injury, accident, illness, 43 or death occurring during or by reason of the field trip or excursion. All adults taking out-of-state 44 field trips or excursions and all parents or guardians of pupils taking out-of-state field trips or 45 excursions shall sign a statement waiving all claims. 46 Notwithstanding any other provision of this code, no school district, city or county board 47 of education, county superintendent of schools, or any officer or employee of such district or 48 board shall be responsible or in any way liable for the conduct or safety of any pupil of the 49 public schools at any time when such pupil is not on school property, unless such district, board, 50 or person has undertaken to provide transportation for such pupil to and from the school 51 premises, has undertaken a school-sponsored activity off the premises of such school, has 52 otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable 53 care under the circumstances. 54 In the event of such a specific undertaking, the district, board, or person shall be liable or 55 responsible for the conduct or safety of any pupil only while such pupil is or should be under the 56 immediate and direct supervision of an employee of such district or board. 57 No transportation allowances shall be made by the Superintendent for expenses incurred 58 with respect to field trips or excursions that have an out-of-state destination. A school district 59 that transports pupils, teachers, or other employees of the district in schoolbuses within the state 60 and to destinations within the state, pursuant to the provisions of this section, shall report to the 61 Superintendent on forms prescribed by him or her the total mileage of schoolbuses used in 62 connection with educational excursions. In computing the allowance to a school district for 63 regular transportation there shall be deducted from that allowance an amount equal to the 64 depreciation of schoolbuses used for the transportation in accordance with rules and regulations 65 adopted by the Superintendent. 66 67 §44808: Rights and Duties of Certificated Employees 68 Notwithstanding any other provision of this code, no school district, city or county board 69 of education, county superintendent of schools, or any officer or employee of such district or 70 board shall be responsible or in any way liable for the conduct or safety of any pupil of the 71 public schools at any time when such pupil is not on school property, unless such district, board, 72 or person has undertaken to provide transportation for such pupil to and from the school 73 premises, has undertaken a school-sponsored activity off the premises of such school, has 74 otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable 75 care under the circumstances. 76 In the event of such a specific undertaking, the district, board, or person shall be liable or 77 responsible for the conduct or safety of any pupil only while such pupil is or should be under the 78 immediate and direct supervision of an employee of such district or board. 79

(Proposed new language underlined; language to be deleted stricken)

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PROPONENT: The Bar Association of San Francisco STATEMENT OF REASONS The Problem: Education Code § 35330 (d) provides absolute “[school] field trip immunity.” The section bars parents from filing “any claim” after a student suffers an injury during a “field trip or excursion.” In contrast, § 44808 provides qualified immunity to the schools when a student suffers an injury during an off-campus “school-sponsored event.” As a result of these conflicting Education Code sections, when a student suffers an injury, including death, during an off-campus event, then the courts must choose which section to apply. For example, if the school activity was a “field trip or excursion,” then the court will apply the absolute immunity of § 35330 (d). In contrast, if the activity was a “school-sponsored event,” then the court will apply the qualified immunity of § 44808. See Castro v. Los Angeles Bd. of Education, 54 Cal.App.3d 232 (1976) (§ 44808 qualified immunity applied for a student’s death during an ROTC summer camp); Wolfe v Dublin Unified School Dist., 56 Cal.App.4th 126 (1997) (§ 35330 (d) absolute immunity applied); and Myricks v. Lynwood Unified School Dist., 74 Cal.App.4th 231 (1999) (§ 35330 (d) absolute immunity applied).A 2002 case, Casterson v. Superior Court, demonstrates how unfair these artificial distinctions can be to the injured students and their families. Casterson v. Superior Court, 101 Cal.App.4th 177 (2002). In Casterson, a group of fourth grade students was on a field trip in order to visit the Capital in Sacramento. While the group was at a hotel pool, one of the school employees was assigned to supervise the students who were within the pool area. But then the employee decided to leave the pool area. As a result, one of the students “sank to the bottom” of the pool and nearly drowned. Because the court found that the activity was a “field trip or excursion,” then the court extended the absolute immunity for schools in § 35330 (d) to the employee as an individual. Even though the school employee did not provide proper supervision, she was protected by the “field trip immunity” statute. Thus, the court provided no relief to the student. The Solution: There should not be an artificial distinction between a “field trip or excursion” and a “school-sponsored event.” For example, when schools plan and carry out an off-campus event and the parents sign the required permission slips, then the parents trust that the school will ensure that the students will be properly supervised. As Casterson demonstrates, for off-campus activities, schools should only have qualified immunity, and they should not have absolute immunity. In order to clarify the level of immunity, and because the duty to supervise the students should extend to all types of school employees, whether certificated or not, then the language from § 44808 from “rights and duties of certificated employees” should be placed into § 35330 (d) within “excursions and field trips.” IMPACT STATEMENT This resolution does not affect any other statute or case law. CURRENT OR PRIOR RELATED LEGISLATION Not known.

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AUTHOR AND/OR PERMANENT CONTACT: Catherine Rucker, 20 Azalea Place, Novato, CA 94949Cell: 415-246-6647, catherinerucker@me.com RESPONSIBLE FLOOR DELEGATE: Catherine Rucker

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RESOLUTION 07-11-2015

DIGEST Education safety Code: Certified Life Guards Required for Schools Amends Education Code section 51222 to require that K-12 school districts that offer aquatics physical education shall provide certified lifeguards. RESOLUTION COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: Similar to resolution 08-04-2012 which was approved as amended. Reasons: This resolution amends Education Code section 51222 to require that K-12 school districts that offer aquatics physical education shall provide certified life guards. This resolution should be approved in principle because it ensures that students in school pools are adequately supervised by trained personnel. All K-12 students are required to attend physical education courses for not less than 400 minutes each10 school days. (Gov. Code, § 51241.) School districts have a standard of care to properly supervise students at the school during the school day. (Gov. Code §§ 815.2subd. (a) and 820, subd. (a). For students taking aquatic physical education classes, there is no statutory standard of care for lifeguard supervision for these classes. Often the only supervision is by the physical education instructor. The physical education instructor is not required to be trained as a lifeguard and may not be able to easily supervise all students while also providing instruction. This resolution would require that aquatics classes to have an additional person who would be a paid licensed lifeguard. This licensed lifeguard can be a student. Adding this protection allows the student lifeguard to focus on the safety of the students while the physical education instructor can focus on teaching the class. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Education Code section 51222 to read as follows: §51222 (a) All pupils, except pupils excused or exempted pursuant to Section 51241, shall be 1 required to attend upon the courses of physical education for a total period of time of not less 2 than 400 minutes each 10 schooldays. Any pupil may be excused from physical education 3 classes during one of grades 10, 11, or 12 for not to exceed 24 clock hours in order to participate 4 in automobile driver training. Such pupil who is excused from physical education classes to 5 enroll in driver training shall attend upon a minimum of 7,000 minutes of physical education 6 instruction during such school year. 7

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(b) The governing board of each school district that maintains a high school and that 8 elects to exempt pupils from required attendance in physical education courses pursuant to 9 paragraph (1) or (2) or both of subdivision (b) of Section 51241 shall offer those pupils so 10 exempted a variety of elective physical education courses of not less than 400 minutes each 10 11 schooldays. 12 (c) For all aquatics physical education classes taking place at a pool on a K-12 school 13 property, the school district shall provide paid lifeguard supervision. The certified lifeguard 14 shall be a person in addition to the physical education teacher. To qualify, the lifeguard shall 15 possess a current certificate from either the American Red Cross or YMCA of the U.S.A. 16 lifeguard training program. 17

(Proposed new language underlined; language to be deleted stricken) PROPONENT: The Bar Association of San Francisco

STATEMENT OF REASONS The Problem: School districts have a duty of care to properly supervise students at school and during the school day. California Government Code (GOV) §§ 815.2 (a) & 820 (a).However, California has little or no standard of care for the supervision to be provided during aquatics physical education classes that are held at school swimming pools. This is because Health & Safety Code (HSC) § 116045 only requires lifeguard supervision at a public swimming pool when a “direct fee” is being charged. As a result, several schools have set the “standard” that a physical education teacher, even without special safety training, can supervise an aquatics physical education class during the school day. And as a result, several drownings and near-drownings have occurred during aquatics physical education classes in California. Requiring the school to provide a paid lifeguard, who can be a student, is ideal for several reasons. First, it allows the student lifeguard to focus on the safety of the students while the physical education teacher focuses on teaching swimming skills. Second, both the lifeguard and the teacher will supervise the students. Third, because the physical education teacher is not required to become a certified lifeguard, then there is no issue with teacher employment contracts – and no issue with the local teachers’ union. Paid certified lifeguards have the duty to rescue and the duty to provide advanced first aid. Paid lifeguards have the duty to rescue because they have received training to rescue victims from the pool without endangering their own lives. Paid lifeguards are also trained to apply: rescue breathing, CPR, and an automated external defibrillator (AED) for sudden cardiac arrest. Lifeguards are also trained to apply a backboard to protect the victim’s head, neck and spine from any further injury. In contrast, untrained physical education teachers have no duty to rescue and they are not able to apply advanced lifesaving techniques. (For the purposes of this resolution, the lifeguard training standards are taken from HSC section 116033.) The Solution: This resolution will raise the standard of care to require that during every aquatics physical education classes at a pool on a K-12 school campus, the school district shall provide paid lifeguard supervision. As a result, K-12 students will be able to learn to swim and will enjoy the benefits of aquatic exercise in an environment where the risk of drowning deaths, near-drownings, and debilitating head, neck and spine injuries will be greatly reduced.Because a school swimming pool is a more hazardous environment than the rest of the school campus, if a

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school offers an aquatics physical education class, then the school must provide lifeguard supervision. Further, if the school provides a paid lifeguard, then at least one person supervising the students will have both the duty to rescue and the duty to provide care. Resolution 08-04-2012 (by this author) was adopted as amended by the CCBA. The 2012 resolution was problematic because it would have required the physical education teacher to become a certified lifeguard. And the teachers’ unions will oppose any requirements to increase teacher safety training. IMPACT STATEMENT This resolution does not affect any other statute or case law. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Catherine Rucker, 20 Azalea Place, Novato, CA 94949Cell: 415-246-6647, catherinerucker@me.com RESPONSIBLE FLOOR DELEGATE: Catherine Rucker

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RESOLUTION 07-12-2015 DIGEST Education: Health and Personal Finance Courses Required for Graduation Amends Education Code section 51225.3 to add courses in health and personal finance to the mandatory course requirements for high school graduation. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Education Code section 51225.3 to add courses in health and personal finance to the mandatory course requirements for high school graduation. This resolution should be disapproved because it lacks specificity and adds classes to the mandatory graduation requirements that would be better suited as electives. This resolution would add to high school graduation requirements two additional courses, called “health” and “personal finance.” Although it is important to provide students with opportunities to learn skills necessary for entry into adulthood as well as the workforce, these courses would be better classified as electives. In addition, although the statement of reasons identifies potential topics to be covered in these two courses, those topics are not specified in the legislation. Thus, there is no requirement that the courses cover the topics identified in the Statement of Reasons. In addition, reasonable minds could differ on the propriety of some of the items the proponent includes within the ambit of these subjects and/or the point of view taught on some of the issues. Certainly the course work to which the proponent refers should be available to students who, with their parents, recognize its utility and desirability. On the other hand, who is to say some other course, for example computer coding, would not be more in line as the next priority if requirements were to be added? An additional unintended consequence of imposing such a requirement is that it may delay some students’ graduation date depending on when the courses are offered and it will impose additional costs to already financially strapped schools. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Education Code section 51225.3 to read as follows: §51225.3 (a) A pupil shall complete all of the following while in grades 9 to 12, inclusive, in order 1 to receive a diploma of graduation from high school: 2 (1) At least the following numbers of courses in the subjects specified, each course 3 having a duration of one year, unless otherwise specified: 4

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(A) Three courses in English. 5 (B) Two courses in mathematics. If the governing board of a school district requires more 6 than two courses in mathematics for graduation, the governing board of the school district may 7 award a pupil up to one mathematics course credit pursuant to Section 51225.35. 8 (C) Two courses in science, including biological and physical sciences. 9 (D) Three courses in social studies, including United States history and geography; world 10 history, culture, and geography; a one-semester course in American government and civics; and 11 a one-semester course in economics. 12 (E) One course in visual or performing arts or foreign language. For purposes of 13 satisfying the requirement specified in this subparagraph, a course in American Sign Language 14 shall be deemed a course in foreign language. 15 (F) Two courses in physical education, unless the pupil has been exempted pursuant to 16 the provisions of this code. 17 (G) A one-semester course in health; and a one-semester course in personal finance. 18 (2) Other coursework requirements adopted by the governing board of the school district. 19 (b) The governing board, with the active involvement of parents, administrators, teachers, 20 and pupils, shall adopt alternative means for pupils to complete the prescribed course of study 21 that may include practical demonstration of skills and competencies, supervised work experience 22 or other outside school experience, career technical education classes offered in high schools, 23 courses offered by regional occupational centers or programs, interdisciplinary study, 24 independent study, and credit earned at a postsecondary educational institution. Requirements for 25 graduation and specified alternative modes for completing the prescribed course of study shall be 26 made available to pupils, parents, and the public. 27 (c) If a pupil completed a career technical education course that met the requirements of 28 subparagraph (E) of paragraph (1) of subdivision (a) of Section 51225.3, as amended by the act 29 adding this section, before the inoperative date of that section, that course shall be deemed to 30 fulfill the requirements of subparagraph (E) of paragraph (1) of subdivision (a) of this section. 31 (d) This section shall become operative upon the date that Section 51225.3, as amended 32 by the act adding this section, becomes inoperative. 33

(Proposed new language underlined; language to be deleted stricken) PROPONENT: The Bar Association of San Francisco STATEMENT OF REASONS The Problem: According to Education Code § 51255.3 (F), every California high school student is required to take two years of physical education classes in order to receive a diploma. However, there is no required course in “health.” For example, the California Department of Public Health reported: “Over 2.3 million California adults report having been diagnosed with diabetes, representing one out of every 12 adult Californians,” and “Diabetes is the seventh leading cause of death in California, and determined to be the underlying cause of death in almost 8,000 people each year.” Burden of Diabetes in California, CA Dept. of Public Health, Chronic Disease Control Branch (Sept. 2014).According to Education Code § 51255.3 (D), every high school student is required to take a one-month course in “economics” in order to receive a diploma. However, there is no required course in “personal finance.” In addition to learning

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about macro-economics, high school students should also learn how to live within their financial means. The Solution: This resolution will ensure that all high school students will learn about “health” and about “personal finance” by adding course requirements in order to earn a high school diploma. A one-semester health class can include studies in proper nutrition; the effects of alcohol and drug abuse; personal and family interaction and relations, and domestic violence; sex education, including sexually transmitted diseases; and methods to promote self-esteem. A one-semester personal finance class can include studies in: household finances and budgeting, the effects of credit cards, maintaining a good credit history, avoiding debt, calculating payments and interests rates, how to apply for a loan, and how to finance college studies. Education Code § 52110.5 requires a “one-semester course in parenting skills and education” for grades 7 or 8. The list of subjects includes “nutrition” and “household finances and budgeting.” However, this code section could only become operative if it were funded by January 1, 1995. And apparently, it was not funded. IMPACT STATEMENT The proposed resolution would not impact any other law statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Catherine Rucker20 Azalea Place, Novato, CA 94949 Cell: 415-246-6647catherinerucker@me.com RESPONSIBLE FLOOR DELEGATE: Catherine Rucker

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RESOLUTION 08-01-2015 DIGEST Criminal Law: Including Non-Statutory Dismissals to Two-Dismissal Rule Amends Penal Code section 1387 to include dismissal based on denial of substantial rights, and to require that the same judge hear any relitigation of such motions. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: Amends Penal Code section 1387 to include dismissal based on denial of substantial rights, and to require that the same judge hear any relitigation of such motions. This resolution should be approved in principle because it is consistent with the purposes of the statute and current law is not clear. Section 1387, often described as the ‘two-dismissal rule,’ establishes that ‘two dismissals pursuant to sections 1385, 859b, 861, 871 or 995, bar retrial on felony charges except in limited situations.’ (People v. Hatch (2000) 22 Cal.4th 260, 270.) It is meant to curtail prosecutorial harassment by limiting the number of times charges may be refiled, thus reducing the possibility prosecutors might use the power to dismiss and refile to forum shop or evade speedy trial rights. (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1018.) However, not every dismissal implicates the ‘two-dismissal rule’ because not every defect in a prosecution may be raised under one of the enumerated statutes. For example, where the deprivation of a substantial right is not shown in the preliminary hearing transcript, a section 995 motion does not lie and the issue is properly raised in a nonstatutory motion to dismiss. (Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 271.) There is no reason such a dismissal should not have the same preclusive effect for purposes of refiling of charges as a statutory motion. This resolution would further protect against possible forum shopping by requiring any relitigation of the dismissal motion be heard by the same judge, if available. Because this resolution relates to procedural motions rather than those based on factual determinations, the need for consistency in rulings served by returning to the same bench officer is of less significance than, for example, where a motion to suppress is being relitigated. However, there remains some benefit to having one judge rule on successive motions. Related to Resolutions 08-04-2015 and 08-09-2015, which are limited to the requirement that the matter be heard by the same judge—albeit under different statutes—and Resolution 08-07-2015, which changes the ‘two-dismissal’ rule without adding the requirement that the matter be heard by the same judge.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Penal Code section 1387 to read as follows: §1387. Dismissal as bar to prosecution; exceptions (a) An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 1 995, or by a non-statutory motion to dismiss because the defendant has been denied a substantial 2 right by the prosecution or law enforcement, is a bar to any other prosecution for the same 3 offense if it is a felony or if it is a misdemeanor charged together with a felony and the action has 4 been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995, or by a 5 non-statutory motion to dismiss because the defendant has been denied a substantial right by the 6 prosecution or law enforcement

(1) That substantial new evidence has been discovered by the prosecution which would 11 not have been known through the exercise of due diligence at, or prior to, the time of termination 12 of the action. 13

, or if it is a misdemeanor not charged together with a felony, 7 except in those felony cases, or those cases where a misdemeanor is charged with a felony, 8 where subsequent to the dismissal of the felony or misdemeanor the judge or magistrate finds 9 any of the following: 10

(2) That the termination of the action was the result of the direct intimidation of a 14 material witness, as shown by a preponderance of the evidence. 15 (3) That the termination of the action was the result of the failure to appear by the 16 complaining witness, who had been personally subpoenaed in a prosecution arising under 17 subdivision (e) of Section 243 or Section 262, 273.5, or 273.6. This paragraph shall apply only 18 within six months of the original dismissal of the action, and may be invoked only once in each 19 action. Nothing in this section shall preclude a defendant from being eligible for diversion. 20 (4) That the termination of the action was the result of the complaining witness being 21 found in contempt of court as described in subdivision (b) of Section 1219 of the Code of Civil 22 Procedure. This paragraph shall apply only within six months of the original dismissal of the 23 action, and may be invoked only once in each action. 24 (b) Notwithstanding subdivision (a), an order terminating an action pursuant to this 25 chapter is not a bar to another prosecution for the same offense if it is a misdemeanor charging 26 an offense based on an act of domestic violence, as defined in subdivisions (a) and (b) of Section 27 13700, and the termination of the action was the result of the failure to appear by the 28 complaining witness, who had been personally subpoenaed. This subdivision shall apply only 29 within six months of the original dismissal of the action, and may be invoked only once in each 30 action. Nothing in this subdivision shall preclude a defendant from being eligible for diversion. 31 (c) An order terminating an action is not a bar to prosecution if a complaint is dismissed 32 before the commencement of a preliminary hearing in favor of an indictment filed pursuant to 33 Section 944 and the indictment is based upon the same subject matter as charged in the dismissed 34 complaint, information, or indictment. 35 However, if the previous termination was pursuant to Section 859b, 861, 871, or 995, the 36 subsequent order terminating an action is not a bar to prosecution if: 37 (1) Good cause is shown why the preliminary examination was not held within 60 days 38 from the date of arraignment or plea. 39

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(2) The motion pursuant to Section 995 was granted because of any of the following 40 reasons: 41 (A) Present insanity of the defendant. 42 (B) A lack of counsel after the defendant elected to represent himself or herself rather 43 than being represented by appointed counsel. 44 (C) Ineffective assistance of counsel. 45 (D) Conflict of interest of defense counsel. 46 (E) Violation of time deadlines based upon unavailability of defense counsel. 47 (F) Defendant’s motion to withdraw a waiver of the preliminary examination. 48 (3) The motion pursuant to Section 995 was granted after dismissal by the magistrate of 49 the action pursuant to Section 871 and was recharged pursuant to Section 739. 50

(d) Where an order has terminated an action pursuant to this chapter, or Section 859b, 51 861, 871, 995, or by a non-statutory motion to dismiss because the defendant has been denied a 52 substantial right by the prosecution or law enforcement, relitigation of the motion shall be heard 53 by the judicial officer that granted the dismissal of the charges, unless that judicial officer is 54 unavailable. 55

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Orange County Bar Association STATEMENT OF REASONS The Problem: Current law does not provide for Penal Code section 1387’s protections against multiple prosecutions for the same offense to dismissals obtained by a non-statutory motion to dismiss based upon the denial of a substantial right by the prosecution. Further, present law affords the prosecution the ability to forum shop by permitting relitigation of the motion to dismiss before any judge. Currently, there are no clear limitations to re-filing charges following even multiple dismissals for violations of the defendant’s substantial rights by the prosecution at preliminary hearings. Lack of restrictions permit repeated attempts to charge an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity, often keeping him in custody, as well as enhancing the possibility that even though innocent he may be found guilty. This resolution extends existing provisions of section 1387 to dismissals on non-statutory grounds for violations of a criminal defendant’s state or constitutional rights by the prosecution. Further, forum shopping by the prosecution is discouraged in relitigation of multiple motions to dismiss where similar to Penal Code section 1538.5(p), the subsequent motion must be heard by the same judge if that judge is available. The Solution: Would extend protections against repeated attempts to charge a defendant where the same charges were dismissed on the basis of a non-statutory motion to dismiss for violations of a criminal defendant’s state or constitutional rights by the prosecution. The changes also adopt Penal Code section 1538.5’s requirement that multiple motions to dismiss on those grounds provided by section 1387 be heard by the same judge if that judge is available. IMPACT STATEMENT

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This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Doreen Boxer, 19200 Von Karman Avenue, Suite 900, Irvine, CA 92612, voice (949) 261 – 2700, fax (949) 266 – 0330, e-mail doreen@doreenboxer.com RESPONSIBLE FLOOR DELEGATE: Doreen Boxer

COUNTERARGUMENTS TO RESOLUTION 08-01-2015 SACRAMENTO COUNTY BAR ASSOCIATION Resolution 8-01-2015 proposes adding the phrase “non-statutory motion to dismiss” to Penal Code section 1387, and adding paragraph (d), which would require that, after an action has been terminated and refiled, “relitigation of the motion” would be heard by the same judge. The proposed addition misunderstands the effect of a dismissal and refiling, and fails to appreciate that a magistrate ruling on a motion to suppress evidence employs a different standard than a judge ruling on a motion to dismiss. The dismissals contemplated in section 1387 relate to the probable cause determination. Three grounds listed go to procedural irregularities: where the preliminary examination is not held within statutory time (§859b); where it is not conducted within one session (§861); or where after examination the magistrate declines to hold the defendant to answer (§871). In ruling on a section 995 motion, the reviewing court grants the motion only where there is a total absence of evidence to support a necessary element of the offense charged. (See Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 842.) This deferential standard also applies to so-called non-statutory or common law motions to dismiss. (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 740.) “’Upon review of a motion to set aside an information, [an appellate court] disregards the superior court's ruling and directly examines that of the magistrate. [The court] must draw every legitimate inference in favor of the magistrate's ruling and cannot substitute [its] judgment on the credibility of witnesses or weight of the evidence.’” (Id., quoting People v. Eid (1994) 31 Cal.App.4th 114, 125.) The issue under section 1538.5 involves a specific examination of whether the police acted with probable cause [if no warrant], or whether the defendant can traverse or quash the warrant. By requiring that the same judge who grants a suppression motion also hear any relitigation of that motion in a refiled action, the law ensures a measure of consistency in how the same facts will be evaluated and prevents the prosecutor from forum shopping. (See Barnes v. Superior Court (2002) 96 Cal.App.4th 631, 641.)

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In contrast, motions to dismiss do not involve weighing of facts or credibility determinations. (See Miller, supra, 101 Cal.App.4th at pp. 740-741.) The reviewing court must defer to the magistrate and deny the motion to dismiss unless the preliminary hearing transcript contains no evidence to support the ruling. Because a motion to dismiss involves no factual determinations, the policy considerations behind section 1538.5(p) are not applicable and need not be replicated. Further, requiring that a judge who previously granted a motion to dismiss also hear any new motion to dismiss [based on a new probable cause determination] only creates case management problems for the court without promoting any interest in the fair administration of justice.

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RESOLUTION 08-02-2015

DIGEST Duty of Confidentiality: Permitting Disclosure to Prevent Wrongful Execution and Incarceration Amends Business and Professions Code section 6068 to allow an attorney discretion to reveal confidential information if it prevents execution or life imprisonment of a factually innocent person. RESOLUTIONS COMMITTEE RECOMMENDATIONS APPROVE IN PRINCIPLE History: Similar to Resolution 04-08-2002, which was approved in principle and Resolution 10-03-2004, which was withdrawn. Reasons: This resolution amends Business and Professions Code section 6068 to allow an attorney discretion to reveal confidential information if it prevents execution or life imprisonment of a factually innocent person. This resolution should be approved in principle because it leaves the decision to reveal confidential information to the discretion of the attorney and it does not create an absolute obligation to reveal the information. The proposed resolution takes the difficult task of balancing a client’s need for confidentiality and effective representation against society’s desire to only incarcerate or execute those guilty of the underlying offense. This proposal puts a stronger emphasis on the personal liberty, freedom, and wholeness of the factually innocent person facing life imprisonment and/or execution over the client’s desire for confidentiality. However, that emphasis is tempered by allowing the final decision to be made by the attorney. The attorney is not required to disclose this information, the attorney MAY disclose the information. The American Bar Association’s Model Rules of Professional Conduct state that the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of their clients. There are, however, limited exceptions such as preventing reasonably certain death or substantial bodily harm, committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another, or to secure legal advice about the lawyer’s compliance with these rules. This proposal would expand those exceptions to include a narrow exception when a factually innocent third party is facing life execution or life imprisonment. This exception is written in the spirit of the previous exception in which disclosure is at the attorney’s discretion to prevent great bodily harm or death. This resolution is related to Resolution 02-01-2015.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Business and Professions Code section 6068 to read as follows: §6068 It is the duty of an attorney to do all of the following: 1 (a) To support the Constitution and laws of the United States and of this state. 2 (b) To maintain the respect due to the courts of justice and judicial officers. 3 (c) To counsel or maintain those actions, proceedings, or defenses only as appear to him 4 or her legal or just, except the defense of a person charged with a public offense. 5 (d) To employ, for the purpose of maintaining the causes confided to him or her those 6 means only as are consistent with truth, and never to seek to mislead the judge or any judicial 7 officer by an artifice or false statement of fact or law. 8 (e) (1) To maintain inviolate the confidence, and at every peril to himself or herself to 9 preserve the secrets, of his or her client. 10 (2) Notwithstanding paragraph (1), an attorney may, but is not required to, reveal 11 confidential information relating to the representation of a client to the extent that the attorney 12 reasonably believes the disclosure is necessary to prevent (A) an criminal act that the attorney 13 reasonably believes is likely to result in death of, or substantial bodily harm to, an individual, 14 including the execution or life imprisonment of a factually innocent person, or (B) the 15 incarceration of a factually innocent person if the client is deceased. 16 (f) To advance no fact prejudicial to the honor or reputation of a party or witness, unless 17 required by the justice of the cause with which he or she is charged. 18 (g) Not to encourage either the commencement or the continuance of an action or 19 proceeding from any corrupt motive of passion or interest. 20 (h) Never to reject, for any consideration personal to himself or herself, the cause of the 21 defenseless or the oppressed. 22 (i) To cooperate and participate in any disciplinary investigation or other regulatory or 23 disciplinary proceeding pending against himself or herself. However, this subdivision shall not 24 be construed to deprive an attorney of any privilege guaranteed by the Fifth Amendment to the 25 Constitution of the United States, or any other constitutional or statutory privileges. This 26 subdivision shall not be construed to require an attorney to cooperate with a request that requires 27 him or her to waive any constitutional or statutory privilege or to comply with a request for 28 information or other matters within an unreasonable period of time in light of the time 29 constraints of the attorney’s practice. Any exercise by an attorney of any constitutional or 30 statutory privilege shall not be used against the attorney in a regulatory or disciplinary 31 proceeding against him or her. 32 (j) To comply with the requirements of Section 6002.1. 33 (k) To comply with all conditions attached to any disciplinary probation, including a 34 probation imposed with the concurrence of the attorney. 35 (l) To keep all agreements made in lieu of disciplinary prosecution with the agency 36 charged with attorney discipline. 37

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(m) To respond promptly to reasonable status inquiries of clients and to keep clients 38 reasonably informed of significant developments in matters with regard to which the attorney has 39 agreed to provide legal services. 40 (n) To provide copies to the client of certain documents under time limits and as 41 prescribed in a rule of professional conduct which the board shall adopt. 42 (o) To report to the agency charged with attorney discipline, in writing, within 30 days of 43 the time the attorney has knowledge of any of the following: 44 (1) The filing of three or more lawsuits in a 12-month period against the attorney for 45 malpractice or other wrongful conduct committed in a professional capacity. 46 (2) The entry of judgment against the attorney in a civil action for fraud, 47 misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional 48 capacity. 49 (3) The imposition of judicial sanctions against the attorney, except for sanctions for 50 failure to make discovery or monetary sanctions of less than one thousand dollars ($1,000). 51 (4) The bringing of an indictment or information charging a felony against the attorney. 52 (5) The conviction of the attorney, including any verdict of guilty, or plea of guilty or no 53 contest, of a felony, or a misdemeanor committed in the course of the practice of law, or in a 54 manner in which a client of the attorney was the victim, or a necessary element of which, as 55 determined by the statutory or common law definition of the misdemeanor, involves improper 56 conduct of an attorney, including dishonesty or other moral turpitude, or an attempt or a 57 conspiracy or solicitation of another to commit a felony or a misdemeanor of that type. 58 (6) The imposition of discipline against the attorney by a professional or occupational 59 disciplinary agency or licensing board, whether in California or elsewhere. 60 (7) Reversal of judgment in a proceeding based in whole or in part upon misconduct, 61 grossly incompetent representation, or willful misrepresentation by an attorney. 62 (8) As used in this subdivision, “against the attorney” includes claims and proceedings 63 against any firm of attorneys for the practice of law in which the attorney was a partner at the 64 time of the conduct complained of and any law corporation in which the attorney was a 65 shareholder at the time of the conduct complained of unless the matter has to the attorney’s 66 knowledge already been reported by the law firm or corporation. 67 (9) The State Bar may develop a prescribed form for the making of reports required by 68 this section, usage of which it may require by rule or regulation. 69 (10) This subdivision is only intended to provide that the failure to report as required 70 herein may serve as a basis of discipline.71

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Michael Fern, Joseph Goldstein, Charles Wake, Michele Hanisee, Garett Gorlitsky, Lisa Berger, John Van de Kamp, Alan Ramos, Gerald C. Benezra, James Secord STATEMENT OF REASONS The Problem: Alton Logan spent 26 years in prison, serving a life sentence for a murder that he did not commit. In 2008, two lawyers revealed that back in 1982 they represented a client who

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had confessed to the killing attributed to Logan. The client was later convicted of murdering two police officers and was sentenced to a life term. However, he refused to permit any disclosure of his confession until after his death. Despite their misgivings, the two lawyers were duty-bound to remain silent until their client’s death in prison in 2007. A year after Logan’s release, Illinois revised its rules of professional conduct to mandate disclosure when necessary to prevent “death or substantial bodily harm.” The duty of confidentiality is not absolute. Under existing law, an attorney may disclose a client’s secrets to prevent a “criminal” act likely to result in “death or substantial bodily harm,” such as a plan to kill a witness or set off a bomb. However, a “criminal” act does not include the execution or life imprisonment of a factually innocent person who was afforded due process.

The Solution: This resolution would extend the existing “death or substantial bodily harm” exception to non-criminal acts and also permit disclosure to prevent the wrongful incarceration of a factually innocent person when the client is deceased. No attorney should be subject to disciplinary action by the State Bar for making a disclosure that prevents a wrongful execution. The resolution is based on ABA Model Rule 1.6, subdivision (b)(1), which permits disclosure to prevent “death or substantial bodily harm” without limitation. Thirty-eight states have adopted this formulation, including New York in 2009, including three that have a rule of mandatory disclosure (Florida, Illinois, Washington). Also, at least two states expressly permit disclosure to prevent wrongful incarceration (Alaska, Massachusetts) There is no evidence from any jurisdiction that adopting ABA Model Rule 1.6 will impair effective advocacy. Because disclosure is not mandatory, a lawyer is free to maintain a practice of never disclosing under any circumstance. In addition, a disclosure involving a factually innocent person cannot be introduced as evidence to prosecute a client, because this resolution does not create an evidentiary exception to attorney-client privilege (see, e.g., Evid. Code, §§ 956-961). As Blackstone wrote: “[T]he law holds it better that ten guilty persons escape, than that one innocent party suffer.” (Note: The author of this resolution will consider alternative amendments to address the Alton Logan problem that would balance competing interests differently.) IMPACT STATEMENT This resolution would affect Rule 3-100(B) of the Rules of Professional Conduct by expanding the existing exception to confidentiality. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Michael Fern, Los Angeles County District Attorney’s Office, 201 N. Figueroa St., Ste. 1600, Los Angeles, CA 90012, (213) 537-4529, sclawyer@gmail.com RESPONSIBLE FLOOR DELEGATE: Michael Fern

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COUNTERARGUMENTS TO RESOLUTION 08-02-2015 SAN DIEGO COUNTY BAR ASSOCIATION The SDCBA Delegation urges disapproval of Resolution 08-02-2015. This resolution would allow a licensed attorney to reveal confidential information if the attorney reasonably believes the disclosure is necessary to prevent (A) an act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual, including the execution or life imprisonment of a factually innocent person or (B) the incarceration of a factually innocent person if the client is deceased. This resolution should be disapproved because it allows too much latitude to speculate on the possible outcome where the facts are only “reasonably believed,” not known to any degree of certainty.

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RESOLUTION 08-03-2015 DIGEST Criminal Law: Inmate’s Sexual Abuse in Detention Elimination Act Adds Penal Code sections 2635.5 and 2644 through 2648, and amends Penal Code sections 2635 through 2639, and 2643 to conform to federal law regarding prison sexual abuse. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: Identical to 06-12-2014, which was approved in principle. Reasons: This resolution adds Penal Code sections 2635.5 and 2644 through 2648, and amends Penal Code sections 2635 through 2639, and 2643 to conform to federal law regarding prison sexual abuse. This resolution should be approved in principle to bring California law in line with federal guidelines and lessen the pervasiveness of sexual assault in prisons and jails. In 2003, Congress passed the Prison Rape Elimination Act of 2003 (42 U.S.C. § 15601 et seq.) ("PREA"), which established a commission to recommend "national standards for enhancing the detection, prevention, reduction, and punishment of prison rape." (42 U.S.C. §§ 15606 subd. (d)(1), (e)(1).) In response, California enacted the Sexual Abuse in Detention Elimination Act of 2005 (Pen. Code, §§ 2635-2643) ("SADE") which 1) required inmates be provided informational handbooks regarding sexual abuse; 2) mandated the adoption by the California Department of Corrections and Rehabilitation ("CDCR") of specified policies, practices and protocols on the placement and health care of inmates and the investigation of sexual abuse; 3) created the Office of the Sexual Abuse in Detention Elimination Ombudsperson to ensure resolution of sexual abuse complaints; and 4) required the CDCR to develop guidelines for allowing outside organizations to provide resources and counseling to inmates. The proponent contends the SADE and CDCR policies do not track the federal standards and fail to adequately protect against rampant sexual violence, particularly against LGBT inmates. This resolution would mandate compliance with the national standards and create new evaluation and enforcement provisions, including regular audits of all facilities, a system of data collection, review and retention, and potential fines for privately run prisons. It would broaden coverage to a wide range of confinement facilities, including immigrant detention centers, and would codify the consideration of detainees’ sexual orientation and gender identity as a risk factor in housing assignments and other classifications. It does not, however, provide funding for this increased oversight. The resolution largely tracks the PREA regulations and is modeled on the language of Senate Bill 716 (2012-2014 Reg. Sess.) which passed the Senate but died in the Assembly because of cost concerns.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to add Penal Code sections 2635.5, 2644, 2645, 2646, 2647, and 2648, and to amend Penal Code sections 2635, 2636, 2637, 2638, 2639, and 2643, to read as follows: §2635 The Department of Corrections and Rehabilitation shall review informational handbooks 1 regarding sexual abuse in detention published by outside organizations. Upon approving the 2 content thereof, handbooks provided by one or more outside organizations shall be made 3 available to inmates and wards. 4 The Department of Corrections and Rehabilitation, each local corrections agency; each 5 city, county, city and county, and regional juvenile justice agency; each city, county, city and 6 county, and regional police lockup; and each private confinement company shall create a safe 7 environment free from sexual abuse for inmates or arrestees, including those inmates or arrestees 8 subject to a United States Immigration and Customs Enforcement hold, by adopting policies and 9 procedures implementing the United States Department of Justice’s National Standards to 10 Prevent, Detect, and Respond to Prison Rape. 11 12 §2635.5 13 For purposes of this article, the following definitions shall apply: 14 (a) “Board” shall mean the Board of State and Community Corrections. 15 (b) “Detainee” means a person confined in a facility under government authority, 16 including arrestees, pretrial and post conviction inmates, prisoners, minors in the juvenile justice 17 system, and federal detainees held in any city, county, city and county, regional, or private 18 facility. 19 (c) “Full implementation” means that every facility of an agency, department, or 20 company shall be compliant with all material requirements of the policies and procedures 21 produced pursuant to this article. Full compliance may be achieved with de minimus violations 22 or discrete and temporary violations during otherwise sustained periods of compliance. 23 (d) “Jail” means a confinement facility of a city, county, city and county, or regional law 24 enforcement agency that has, as its primary use, the detention of persons pending adjudication of 25 criminal charges, persons committed to confinement for a misdemeanor or pursuant to 26 subdivision (h) of Section 1170, persons adjudicated guilty who are awaiting transfer to a state 27 prison, or persons held under the authority of the federal government. 28 (e) “Juvenile justice agency” means a city, county, city and county, or regional 29 government entity that confines juveniles pursuant to the juvenile justice system, the criminal 30 justice system, or under the authority of the federal government. 31 (f) “Lockup” means a facility belonging to a state, county, or local law enforcement 32 agency for the temporary confinement of individuals who have recently been arrested, detained, 33 or are being transferred to or from a court, jail, prison, or other agency. 34 (g) “Private confinement company” means a for-profit or nonprofit company operating in 35 the state that detains individuals, or that manages a facility that detains individuals, on behalf of a 36 federal, city, county, city and county, or regional government. 37 38 §2636 39

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For the purposes of this section, all references to classification of wards shall take effect 40 upon the adoption of a classification system for wards developed by the Department of 41 Corrections and Rehabilitation in compliance with Farrell v. Allen, Alameda County Superior 42 Court Case No. RG 03079344. 43 The following practices shall be instituted to prevent sexual violence and promote inmate 44 and ward safety in the Department of Corrections and Rehabilitation: 45 (a) The Department of Corrections and Rehabilitation inmate classification and housing 46 assignment procedures shall take into account risk factors that can lead to inmates and wards 47 becoming the target of sexual victimization or of being sexually aggressive toward others. 48 Relevant considerations include: 49 (1) Age of the inmate or ward. 50 (2) Whether the offender is a violent or nonviolent offender. 51 (3) Whether the inmate or ward has served a prior term of commitment. 52 (4) Whether the inmate or ward has a history of mental illness. 53 (b) The Department of Corrections and Rehabilitation shall ensure that staff members 54 intervene when an inmate or ward appears to be the target of sexual harassment or intimidation. 55 The Department of Corrections and Rehabilitation and each jail facility shall adopt and 56 implement policies and procedures consistent with the requirements of Sections 115.5 to 115.86, 57 inclusive, of Title 28 of the Code of Federal Regulations for all facilities that house adult 58 inmates, including pretrial inmates and federal detainees. Adoption of these policies or 59 procedures shall take place no later than July 1, 2016. Full implementation of the policies or 60 procedures shall be completed no later than July 1, 2017. 61 62 §2637 63 The Department of Corrections and Rehabilitation shall ensure that its protocols for 64 responding to sexual abuse include all of the following: 65 (a) The safety of an inmate or ward who alleges that he or she has been the victim of 66 sexual abuse shall be immediately and discreetly ensured. Staff shall provide the safest possible 67 housing options to inmates and wards who have experienced repeated abuse. Housing options 68 may include discreet institution transfers. 69 (b) Inmates and wards who file complaints of sexual abuse shall not be punished, either 70 directly or indirectly, for doing so. If a person is segregated for his or her own protection, 71 segregation must be nondisciplinary. 72 (c) Any person who knowingly or willfully submits inaccurate or untruthful information 73 in regards to sexual abuse is punishable pursuant to department regulations. 74 (d) Under no circumstances is it appropriate to suggest that an inmate should fight to 75 avoid sexual violence or to suggest that the reported sexual abuse is not significant enough to be 76 addressed by staff. 77 (e) Staff shall not discriminate in their response to inmates and wards who are gay, 78 bisexual, or transgender who experience sexual aggression, or report that they have experienced 79 sexual abuse. 80 (f) Retaliation against an inmate or ward for making an allegation of sexual abuse shall 81 be strictly prohibited. 82 Each lockup shall adopt and implement policies or procedures consistent with the 83 requirements of Sections 115.5, 115.6, and 115.111 to 115.186, inclusive, of Title 28 of the Code 84 of Federal Regulations. Adoption of these policies or procedures shall take place no later than 85

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July 1, 2016. Full implementation of the policies or procedures shall be completed no later than 86 July 1, 2017. 87 88 §2638 89 Thoughtful, confidential standards of physical and mental health care shall be 90 implemented to reduce the impact of sexual abuse on inmates and wards in the Department of 91 Corrections and Rehabilitation that include all of the following: 92 (a) Victims shall receive appropriate acute-trauma care for rape victims, including, but 93 not limited to, treatment of injuries, HIV/AIDS prophylactic measures, and, later, testing for 94 sexually transmittable diseases. 95 (b) Health practitioners who conduct or encounter an inmate or ward suffering from 96 problems that might indicate sexual abuse, such as trauma, sexually transmissible diseases, 97 pregnancy, or chronic pain symptoms, shall ask whether the patient has experienced sexual 98 abuse. 99 (c) Practitioners should strive to ask frank, straightforward questions about sexual 100 incidents without shaming inmates or displaying embarrassment about the subject matter. 101 (d) Confidential mental health counseling intended to help the victim to cope with the 102 aftermath of abuse shall be offered to those who report sexual abuse. Victims shall be monitored 103 for suicidal impulses, posttraumatic stress disorder, depression, and other mental health 104 consequences. 105 (e) Any adult inmate in mental health counseling for any reason shall be entitled to speak 106 confidentially about sexual abuse. 107 A state, county, and local juvenile justice agency shall adopt and implement policies or 108 procedures consistent with the requirements of Sections 115.5, 115.6, and 115.311 to 115.386, 109 inclusive, of Title 28 of the Code of Federal Regulations. Adoption of these policies or 110 procedures shall take place no later than July 1, 2016. Full implementation of the policies or 111 procedures shall be completed no later than July 1, 2017. 112 113 §2639 114 The Department of Corrections and Rehabilitation shall ensure that the following 115 procedures are performed in the investigation and prosecution of sexual abuse incidents: 116 (a) The provision of safe housing options, medical care, and the like shall not be 117 contingent upon the victim’s willingness to press charges. 118 (b) Investigations into allegations of sexual abuse shall include, when deemed appropriate 119 by the investigating agency, the use of forensic rape kits, questioning of suspects and witnesses, 120 and gathering of other relevant evidence. 121 (c) Physical and testimonial evidence shall be carefully preserved for use in any future 122 proceedings. 123 (d) Staff attitudes that inmates and wards cannot provide reliable information shall be 124 discouraged. 125 (e) If an investigation confirms that any employee has sexually abused an inmate or ward, 126 that employee shall be terminated. Administrators shall report criminal sexual abuse by staff to 127 law enforcement authorities. 128 (f) Consensual sodomy and oral copulation among inmates is prohibited by subdivision 129 (e) of Section 286 and subdivision (e) of Section 288a, respectively. Without repealing those 130

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provisions, the increased scrutiny provided by this article shall apply only to nonconsensual 131 sexual contact among inmates and custodial sexual misconduct. 132 (a) Private confinement companies shall adopt and implement the relevant policies or 133 procedures from Section 2636, 2637, or 2638. Adoption of these policies or procedures shall take 134 place no later than July 1, 2016. Full implementation of the policies or procedures shall be 135 completed no later than July 1, 2017. 136 (b) A private confinement company with a facility that only houses detainees under 137 contract with the United States Department of Homeland Security is exempt from the 138 requirements of subdivision (a). 139 140 §2643 141 The provisions of this act are severable. If any provision of this act or its application is 142 held invalid, that invalidity shall not affect other provisions or applications that can be given 143 effect without the invalid provision or application. 144 (a) On or before July 1, 2015, the agency, department, or company shall certify in writing 145 to the board that it has adopted policies or procedures as mandated by Section 2636, 2637, 2638, 146 or 2639 and shall transmit its policies and procedures electronically to the board. 147 (b) The board shall, in a timely manner, make the policies and procedures of each agency, 148 department, and company available to the public on an Internet Web site. 149 (c) The board shall provide a means for an interested member of the public to raise 150 substantial and specific concerns about the material insufficiency of the published policies or 151 procedures of any agency, department, or company. Upon receipt of these concerns from a 152 member of the public, the board shall have 90 days to review the relevant policies or procedures. 153 Any concerns by the public shall be raised with the board before July 1, 2015. 154 (d) On its own or in response to concerns raised by a member of the public, the board 155 shall notify the agency, department, or company whose policies or procedures do not meet the 156 requirements of Section 2636, 2637, 2638, or 2639 that it intends to reject the certification. This 157 notice shall be in writing and shall include a specific recommendation for the manner in which 158 the agency, department, or company may modify its policies or procedures to correct the 159 deficiencies. An agency, department, or company receiving this notification shall have 180 days 160 from the receipt of the written notice to adequately modify the policies and procedures. If, after 161 the 180-day period, the board finds that the policies and procedures are still inadequate, the 162 board shall reject the certification. 163 164 §2644 165 (a) Audits of facilities governed by this article shall be conducted on a three-year cycle. 166 Beginning July 1, 2015, each agency, department, or company shall ensure that each facility 167 operated by the agency, department, or company is audited at least once every three years. Any 168 agency, department, or company with three or more facilities shall ensure that approximately 169 one-third of its facilities are audited each year of an audit cycle. 170 (b) An audit conducted in compliance with Sections 115.401 to 115.405, inclusive, of 171 Title 28 of the Code of Federal Regulations shall suffice for the purposes of this section. For 172 private confinement companies with facilities that only house detainees under contract with the 173 United States Department of Homeland Security, an audit conducted under Sections 115.401 to 174 115.405, inclusive, of Title 6 of the Code of Federal Regulations shall suffice for the purposes of 175 this section. 176

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(c) The board shall publish audit procedures consistent with the requirements of Sections 177 115.401 to 115.405, inclusive, of Title 28 of the Code of Federal Regulations that will govern all 178 audits required by subdivision (a). The board shall separately publish audit procedures consistent 179 with Sections 115.401 to 115.405, inclusive, of Title 6 of the Code of Federal Regulations for 180 private confinement companies with facilities that only house detainees under contract with the 181 United States Department of Homeland Security. 182 (d) The board shall also certify auditors, including, but not limited to, auditors who work 183 directly with the board, and maintain a publicly available list of California-certified auditors. At 184 its discretion, the board may rely on an auditor’s certification by the United States Department of 185 Justice as evidence that the auditor is qualified to perform audits under this section. For private 186 confinement companies with facilities that only house detainees under contract with the United 187 States Department of Homeland Security, the board may rely on an auditor’s certification by the 188 United States Department of Homeland Security as evidence that the auditor is qualified to 189 perform audits under this section. 190 (e) The board shall produce a standard audit report format or identify an existing audit 191 report format prior to July 1, 2015. An auditor shall, within 60 days of an audit or the completion 192 of a corrective action plan, complete a written audit report for each facility audited using the 193 standard report format. The auditor will forward the report to the board, which shall make the 194 reports available to the public on an Internet Web site. 195 (f) Acting on its own or in response to substantial and specific concerns from an 196 individual, the board may recommend or require an agency, department, or company to undergo 197 an expedited audit for one or more of its facilities. The board may only require an expedited 198 audit when it has sufficient reason to believe that a pattern and practice of sexual abuse is 199 occurring within a facility. An agency, department, or company shall be provided with a 200 reasonable opportunity to respond to evidence before an expedited audit can be required. The 201 board shall identify a public means by which the board can receive an individual’s report of 202 substantial and specific concerns about a facility. 203 204 §2645 205 (a) The agency, department, or company shall collect accurate, uniform data for every 206 allegation of sexual abuse using a standardized instrument and set of definitions. 207 (b) The agency, department, or company shall aggregate the incident-based sexual abuse 208 data at least annually. 209 (c) The agency, department, or company shall annually review data collected and 210 aggregated pursuant to subdivisions (a) and (b) in order to assess and improve the effectiveness 211 of its sexual abuse prevention, detection, and response policies, practices, and training. 212 (d) The agency, department, or company shall ensure that the data collected pursuant to 213 subdivision (a) are securely retained. 214 (e) The agency, department, or company shall make all aggregated sexual abuse data 215 readily available to the public at least annually through its Internet Web site or other publicly 216 accessible means. 217 (f) Before making aggregated sexual abuse data publicly available, the agency, 218 department, or company shall remove all personal identifiers. 219 (g) The agency, department, or company shall maintain sexual abuse data collected 220 pursuant to subdivision (a) for at least 10 years after the date of its initial collection, unless 221 federal, state, or local law requires otherwise. 222

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223 §2646 224 (a) An agency or department with an existing contract or agreement with a facility 225 defined in subdivision (c) shall probatively modify its contract or agreement to incorporate the 226 policies or procedures it adopts pursuant to Section 2636, 2637, 2638, or 2639. This modification 227 shall be completed prior to the submission of the certification required by Section 2643. If an 228 agency or department is involved in good faith negotiations to modify a contract or agreement on 229 the date the certification is required to be submitted to the board, the agency or department may 230 still submit its certification along with a request for 60 additional days to complete the 231 modification. At the end of those 60 days, the agency or department shall submit a supplemental 232 certification documenting the successful modification of the contract or agreement or withdraw 233 its certification. 234 (b) An agency or department that seeks to enter into a new contract or agreement with a 235 facility defined in subdivision (c) after January 1, 2017, shall incorporate the policies and 236 procedures it adopts pursuant to Section 2636, 2637, 2638, or 2639 into that contract or 237 agreement. 238 (c) For purposes of this section, “facility” means a city, county, city and county, or 239 regional agency or department that confines individuals in a public or private facility not covered 240 by Section 2636, 2637, 2638, or 2639. These facilities shall include, but are not limited to, 241 mental health facilities and out-of-state private confinement companies. 242 243 §2647 244 (a) A city, county, city and county, or regional agency or department that fails to provide 245 the certification required by Section 2643, has its certification rejected by the board, fails to have 246 its facility or facilities audited in a timely manner as required by Section 2644, or has one or 247 more facilities fail an audit after being given an opportunity to correct any deficiencies will have 248 subsequent board-administered grant renewals or awards reduced by 25 percent in the first year 249 of noncompliance and by 50 percent in the second year of noncompliance. An agency or 250 department that enters into a third year of noncompliance will be ineligible for any board-251 administered grant renewals or awards until compliance is achieved. An agency or department 252 may show compliance by providing a valid certification or by completing a successful audit of a 253 facility that is delinquent for or has failed an audit. 254 (b) A private confinement company that fails to provide the certification required by 255 Section 2643, has its certification rejected by the board, fails to have its facility or facilities 256 audited in a timely manner as required by Section 2644, or has one or more facilities fail an audit 257 after being given an opportunity to correct any deficiencies will be assessed a five-hundred-258 dollar ($500) penalty on the first day the certification or audit is due or a failed audit is reported 259 to the board. The private confinement company will be assessed an additional one-thousand-260 dollar ($1,000) penalty every seven days thereafter until it provides a valid certification or 261 completes successful audits of any facilities that are delinquent for or have failed an audit. This 262 penalty shall be assessed and collected by the board. 263 264 §2648 265 The provisions of this article are severable. If any provision of this article or its 266 application is held invalid, that invalidity shall not affect other provisions or applications that can 267 be given effect without the invalid provision or application. 268

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(Proposed new language underlined; language to be deleted stricken.)

PROPONENT: Bay Area Lawyers for Individual Freedom STATEMENT OF REASONS The Problem: Sexual violence is a rampant problem across all correctional settings in California, causing extreme psychological trauma and undue punishment beyond that of a person’s incarceration. LGBT inmates are particularly vulnerable to sexual violence. Although the federal Prison Rape Elimination Act (PREA) standards apply to state and local facilities, existing California law does not track the federal requirements. The Solution: This resolution would require prisons, jails, juvenile halls, and other custodial facilities, including private confinement companies, to adopt federal policies and procedures under PREA and its implementing regulations to create a safe environment free from sexual abuse for inmates or arrestees, including those inmates or arrestees subject to a U.S. Immigration and Customs Enforcement hold. It would also implement oversight procedures for regular audits, data collection, reporting, and penalties for noncompliance. This resolution would put all correctional facilities in California in line with many of the carefully considered federal guidelines under the PREA to protect prisoners from sexual violence both by guards and other prisoners. In doing so, the resolution would establish a number of important protections set forth in federal regulations to keep people from finding themselves from facing further punitive measures – including confinement in administrative segregation – for their own protection. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION This resolution tracks the language of SB 716, the proposed Sexual Abuse in Detention Elimination Act, introduced by Senator Ricardo Lara in 2013 (as amended May 28, 2013). AUTHOR AND/OR PERMANENT CONTACT: Denise Bergin, Weaver Austin Villeneuve & Sampson LLP, 555 12th St., Ste 1700, Oakland, CA 94607; 510-267-4142; dbergin@wavsip.com RESPONSIBLE FLOOR DELEGATE: Denise Bergin

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RESOLUTION 08-04-2015 DIGEST Criminal Law: Requirement that Dismissals be Heard by the Same Judge if Available Amends Penal Code section 1387 to require dismissals pursuant to this section be heard by the same judge if available. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Penal Code section 1387 to require dismissals pursuant to this section be heard by the same judge if available. This resolution should be approved in principle because it promotes fairness and justice in the criminal legal system. Penal Code section 1387 currently allows the prosecution to re-litigate a motion to dismiss in certain situations including, but not limited to, new information not previously available, direct intimidation of a witness, failure to appear by a complaining witness, and certain domestic violence charges. Under the current statute, if the prosecution re-litigates the motion to dismiss, the hearing will be conducted in front of the assigned judge; not necessarily the judge who heard the original motion. The judge who previously heard the motion should hear the subsequent motion because that judge understands the case and can best make a determination about the applicability of the exceptions. This restriction will also help curb forum shopping by attorneys seeking a judicial officer who will likely deny the motion to dismiss. Lastly, this proposal allows for the motion to be heard in front of a different judge if, and only if, the original judge is unavailable, meaning the judicial officer has a conflict, is retired, or has moved to a different assignment. The proposed change to the statute promotes continuity and consistency in judicial decisions as well as judicial efficiency. This resolution is related to Resolutions 08-01-2015, 08-07-2015, and 08-09-2015. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Penal Code section 1387 to read as follows: §1387 Dismissal as bar prosecution; exceptions (a) An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 1 995, is a bar to any other prosecution for the same offense if it is a felony or if it is a 2 misdemeanor charged together with a felony and the action has been previously terminated 3 pursuant to this chapter, or Section 859b, 861, 871, or 995, or if it is a misdemeanor not charged 4

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together with a felony, except in those felony cases, or those cases where a misdemeanor is 5 charged with a felony, where subsequent to the dismissal of the felony or misdemeanor the judge 6 or magistrate finds any of the following: 7 (1) That substantial new evidence has been discovered by the prosecution which would 8 not have been known through the exercise of due diligence at, or prior to, the time of termination 9 of the action. 10 (2) That the termination of the action was the result of the direct intimidation of a 11 material witness, as shown by a preponderance of the evidence. 12 (3) That the termination of the action was the result of the failure to appear by the 13 complaining witness, who had been personally subpoenaed in a prosecution arising under 14 subdivision (e) of Section 243 or Section 262, 273.5, or 273.6. This paragraph shall apply only 15 within six months of the original dismissal of the action, and may be invoked only once in each 16 action. Nothing in this section shall preclude a defendant from being eligible for diversion. 17 (4) That the termination of the action was the result of the complaining witness being 18 found in contempt of court as described in subdivision (b) of Section 1219 of the Code of Civil 19 Procedure. This paragraph shall apply only within six months of the original dismissal of the 20 action, and may be invoked only once in each action. 21 (b) Notwithstanding subdivision (a), an order terminating an action pursuant to this 22 chapter is not a bar to another prosecution for the same offense if it is a misdemeanor charging 23 an offense based on an act of domestic violence, as defined in subdivisions (a) and (b) of Section 24 13700, and the termination of the action was the result of the failure to appear by the 25 complaining witness, who had been personally subpoenaed. This subdivision shall apply only 26 within six months of the original dismissal of the action, and may be invoked only once in each 27 action. Nothing in this subdivision shall preclude a defendant from being eligible for diversion. 28 (c) An order terminating an action is not a bar to prosecution if a complaint is dismissed 29 before the commencement of a preliminary hearing in favor of an indictment filed pursuant to 30 Section 944 and the indictment is based upon the same subject matter as charged in the dismissed 31 complaint, information, or indictment. 32 However, if the previous termination was pursuant to Section 859b, 861, 871, or 995, the 33 subsequent order terminating an action is not a bar to prosecution if: 34 (1) Good cause is shown why the preliminary examination was not held within 60 days 35 from the date of arraignment or plea. 36 (2) The motion pursuant to Section 995 was granted because of any of the following 37 reasons: 38 (A) Present insanity of the defendant. 39 (B) A lack of counsel after the defendant elected to represent himself or herself rather 40 than being represented by appointed counsel. 41 (C) Ineffective assistance of counsel. 42 (D) Conflict of interest of defense counsel. 43 (E) Violation of time deadlines based upon unavailability of defense counsel. 44 (F) Defendant’s motion to withdraw a waiver of the preliminary examination. 45 (3) The motion pursuant to Section 995 was granted after dismissal by the magistrate of 46 the action pursuant to Section 871 and was recharged pursuant to Section 739. 47 (d) Where an order has terminated an action pursuant to this chapter, or Section 859b, 48 861, 871, or 995, relitigation of the motion shall be heard by the judicial officer that granted the 49 dismissal of the charges, unless that judicial officer is unavailable. 50

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(Proposed new language underlined; language to be deleted stricken)

PROPONENT: Orange County Bar Association STATEMENT OF REASONS The Problem: Current law affords the prosecution the ability to forum shop by permitting relitigation of the motion to dismiss pursuant to Penal Code section 1387 before any judge. Current law affords the prosecution the ability to forum shop by permitting relitigation of the motion to dismiss pursuant to Penal Code section 1387 before any judge. Forum shopping by the prosecution would be discouraged by relitigation of multiple motions to dismiss similar to Penal Code section 1538.5(p). This resolution would require a subsequent motion to be heard by the same judge who granted the dismissal if that judge is available. The Solution: The proposed change adopts Penal Code section 1538.5’s requirement that multiple motions to dismiss on those grounds provided by section 1387 be heard by the same judicial officer if that judicial officer is available. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Doreen Boxer, 19200 Von Karman Avenue, Suite 900, Irvine, CA 92612, voice (949) 261 – 2700, fax (949) 266 – 0330, e-mail doreen@doreenboxer.com RESPONSIBLE FLOOR DELEGATE: Doreen Boxer

COUNTERARGUMENTS TO RESOLUTION 08-04-2015 SACRAMENTO COUNTY BAR ASSOCIATION Resolution 8-04-2015 proposes adding paragraph (d) to section 1387, which would require that, after an action has been terminated and refiled, “relitigation of the motion” would be heard by the same judge. The proposed addition misunderstands the effect of a dismissal and refilling and fails to appreciate that a magistrate ruling on a motion to suppress evidence employs a different standard than a judge ruling on a motion to dismiss. Dismissals contemplated in section 1387 relate to the probable cause determination. Three grounds listed go to procedural irregularities: where the preliminary examination is not held within statutory time (§859b); where it is not conducted within one session (§861); or where

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after examination the magistrate declines to hold the defendant to answer (§871). In ruling on a section 995 motion, the reviewing court grants the motion only where there is a total absence of evidence to support a necessary element of the offense charged. (See Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 842.) This deferential standard also applies to so-called non-statutory or common law motions to dismiss. (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 740.) “’Upon review of a motion to set aside an information, [an appellate court] disregards the superior court's ruling and directly examines that of the magistrate. [The court] must draw every legitimate inference in favor of the magistrate's ruling and cannot substitute [its] judgment on the credibility of witnesses or weight of the evidence.’” (Id., quoting People v. Eid (1994) 31 Cal.App.4th 114, 125.) The issue under section 1538.5 involves a specific examination of whether the police acted with probable cause [if no warrant], or whether the defendant can traverse or quash the warrant. By requiring that the same judge who grants a suppression motion also hear any relitigation of that motion in a refilled action, the law ensures a measure of consistency in how the same facts will be evaluated and prevents the prosecutor from forum shopping. (See Barnes v. Superior Court (2002) 96 Cal.App.4th 631, 641.) In contrast, motions to dismiss do not involve weighing of facts or credibility determinations. (See Miller, supra, 101 Cal.App.4th at pp. 740-741.) The reviewing court must defer to the magistrate and deny the motion to dismiss unless the preliminary hearing transcript contains no evidence to support the ruling. Because a motion to dismiss involves no factual determinations, the policy considerations behind section 1538.5(p) are not applicable and need not be replicated. Further, requiring that a judge who previously granted a motion to dismiss also hear any new motion to dismiss [based on a new probable cause determination] only creates case management problems for the court without promoting any interest in the fair administration of justice.

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RESOLUTION 08-05-2015

DIGEST Criminal Law: Conditional Sentence and Probation for a Felony Pursuant to Mutual Agreement Amends Penal Code section 1203 to allow a conditional sentence and probation for a felony with the consent of prosecution and defendant. RESOLUTION COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolution found. Reasons: This resolution amends Penal Code section 1203 to allow a conditional sentence and probation for a felony with the consent of prosecution and defendant. This resolution should be approved in principle because not every convicted felon requires standard probation and allowing conditional probations pursuant to the parties’ mutual agreement will help preserve judicial resources. Misdemeanor convictions already allow the court to impose either formal or informal probation. (People v. Willis (2013) 222 Cal.App.4th 141.) This resolution would extend that possibility to a convicted felon if both the defendant and the prosecuting attorney agree. The court would not be bound by the agreement; but, the Court would be unlikely decline the agreement unless there were additional factors that weighed against it. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Penal Code section 1203 to read as follows: §1203 (a) As used in this code, "probation" means the suspension of the imposition or execution 1 of a sentence and the order of conditional and revocable release in the community under the 2 supervision of a probation officer. As used in this code, "conditional sentence" means the 3 suspension of the imposition or execution of a sentence and the order of revocable release in the 4 community subject to conditions established by the court without the supervision of a probation 5 officer. It is the intent of the Legislature that both conditional sentence and probation are 6 authorized whenever probation is authorized in any code as a sentencing option for infractions or 7 misdemeanors, or felonies with the consent of the defendant and the prosecuting attorney. 8 (b) (1) Except as provided in subdivision (j), if a person is convicted of a felony and is 9 eligible for probation, before judgment is pronounced, the court shall immediately refer the 10 matter to a probation officer to investigate and report to the court, at a specified time, upon the 11 circumstances surrounding the crime and the prior history and record of the person, which may 12 be considered either in aggravation or mitigation of the punishment. 13

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(2) (A) The probation officer shall immediately investigate and make a written report to 14 the court of his or her findings and recommendations, including his or her recommendations as to 15 the granting or denying of probation and the conditions of probation, if granted. 16 (B) Pursuant to Section 828 of the Welfare and Institutions Code, the probation officer 17 shall include in his or her report any information gathered by a law enforcement agency relating 18 to the taking of the defendant into custody as a minor, which shall be considered for purposes of 19 determining whether adjudications of commissions of crimes as a juvenile warrant a finding that 20 there are circumstances in aggravation pursuant to Section 1170 or to deny probation. 21 (C) If the person was convicted of an offense that requires him or her to register as a sex 22 offender pursuant to Sections 290 to 290.023, inclusive, or if the probation report recommends 23 that registration be ordered at sentencing pursuant to Section 290.006, the probation officer’s 24 report shall include the results of the State-Authorized Risk Assessment Tool for Sex Offenders 25 (SARATSO) administered pursuant to Sections 290.04 to 290.06, inclusive, if applicable. 26 (D) The probation officer may also include in the report his or her recommendation of 27 both of the following: 28 (i) The amount the defendant should be required to pay as a restitution fine pursuant to 29 subdivision (b) of Section 1202.4. 30 (ii) Whether the court shall require, as a condition of probation, restitution to the victim 31 or to the Restitution Fund and the amount thereof. 32 (E) The report shall be made available to the court and the prosecuting and defense 33 attorneys at least five days, or upon request of the defendant or prosecuting attorney nine days, 34 prior to the time fixed by the court for the hearing and determination of the report, and shall be 35 filed with the clerk of the court as a record in the case at the time of the hearing. The time within 36 which the report shall be made available and filed may be waived by written stipulation of the 37 prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court 38 that is made and entered upon the minutes of the court. 39 (3) At a time fixed by the court, the court shall hear and determine the application, if one 40 has been made, or, in any case, the suitability of probation in the particular case. At the hearing, 41 the court shall consider any report of the probation officer, including the results of the 42 SARATSO, if applicable, and shall make a statement that it has considered the report, which 43 shall be filed with the clerk of the court as a record in the case. If the court determines that there 44 are circumstances in mitigation of the punishment prescribed by law or that the ends of justice 45 would be served by granting probation to the person, it may place the person on probation. If 46 probation is denied, the clerk of the court shall immediately send a copy of the report to the 47 Department of Corrections and Rehabilitation at the prison or other institution to which the 48 person is delivered. 49 (4) The preparation of the report or the consideration of the report by the court may be 50 waived only by a written stipulation of the prosecuting and defense attorneys that is filed with 51 the court or an oral stipulation in open court that is made and entered upon the minutes of the 52 court, except that a waiver shall not be allowed unless the court consents thereto. However, if the 53 defendant is ultimately sentenced and committed to the state prison, a probation report shall be 54 completed pursuant to Section 1203c. 55 (c) If a defendant is not represented by an attorney, the court shall order the probation 56 officer who makes the probation report to discuss its contents with the defendant. 57 (d) If a person is convicted of a misdemeanor, the court may either refer the matter to the 58 probation officer for an investigation and a report or summarily pronounce a conditional 59

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sentence. If the person was convicted of an offense that requires him or her to register as a sex 60 offender pursuant to Sections 290 to 290.023, inclusive, or if the probation officer recommends 61 that the court, at sentencing, order the offender to register as a sex offender pursuant to Section 62 290.006, the court shall refer the matter to the probation officer for the purpose of obtaining a 63 report on the results of the State-Authorized Risk Assessment Tool for Sex Offenders 64 administered pursuant to Sections 290.04 to 290.06, inclusive, if applicable, which the court shall 65 consider. If the case is not referred to the probation officer, in sentencing the person, the court 66 may consider any information concerning the person that could have been included in a 67 probation report. The court shall inform the person of the information to be considered and 68 permit him or her to answer or controvert the information. For this purpose, upon the request of 69 the person, the court shall grant a continuance before the judgment is pronounced. 70 (e) Except in unusual cases where the interests of justice would best be served if the 71 person is granted probation, probation shall not be granted to any of the following persons: 72 (1) Unless the person had a lawful right to carry a deadly weapon, other than a firearm, at 73 the time of the perpetration of the crime or his or her arrest, any person who has been convicted 74 of arson, robbery, carjacking, burglary, burglary with explosives, rape with force or violence, 75 torture, aggravated mayhem, murder, attempt to commit murder, trainwrecking, kidnapping, 76 escape from the state prison, or a conspiracy to commit one or more of those crimes and who 77 was armed with the weapon at either of those times. 78 (2) Any person who used, or attempted to use, a deadly weapon upon a human being in 79 connection with the perpetration of the crime of which he or she has been convicted. 80 (3) Any person who willfully inflicted great bodily injury or torture in the perpetration of 81 the crime of which he or she has been convicted. 82 (4) Any person who has been previously convicted twice in this state of a felony or in any 83 other place of a public offense which, if committed in this state, would have been punishable as a 84 felony. 85 (5) Unless the person has never been previously convicted once in this state of a felony or 86 in any other place of a public offense which, if committed in this state, would have been 87 punishable as a felony, any person who has been convicted of burglary with explosives, rape 88 with force or violence, torture, aggravated mayhem, murder, attempt to commit murder, 89 trainwrecking, extortion, kidnapping, escape from the state prison, a violation of Section 286, 90 288, 288a, or 288.5, or a conspiracy to commit one or more of those crimes. 91 (6) Any person who has been previously convicted once in this state of a felony or in any 92 other place of a public offense which, if committed in this state, would have been punishable as a 93 felony, if he or she committed any of the following acts: 94 (A) Unless the person had a lawful right to carry a deadly weapon at the time of the 95 perpetration of the previous crime or his or her arrest for the previous crime, he or she was armed 96 with a weapon at either of those times. 97 (B) The person used, or attempted to use, a deadly weapon upon a human being in 98 connection with the perpetration of the previous crime. 99 (C) The person willfully inflicted great bodily injury or torture in the perpetration of the 100 previous crime. 101 (7) Any public official or peace officer of this state or any city, county, or other political 102 subdivision who, in the discharge of the duties of his or her public office or employment, 103 accepted or gave or offered to accept or give any bribe, embezzled public money, or was guilty 104 of extortion. 105

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(8) Any person who knowingly furnishes or gives away phencyclidine. 106 (9) Any person who intentionally inflicted great bodily injury in the commission of arson 107 under subdivision (a) of Section 451 or who intentionally set fire to, burned, or caused the 108 burning of, an inhabited structure or inhabited property in violation of subdivision (b) of Section 109 451. 110 (10) Any person who, in the commission of a felony, inflicts great bodily injury or causes 111 the death of a human being by the discharge of a firearm from or at an occupied motor vehicle 112 proceeding on a public street or highway. 113 (11) Any person who possesses a short-barreled rifle or a short-barreled shotgun under 114 Section 33215, a machinegun under Section 32625, or a silencer under Section 33410. 115 (12) Any person who is convicted of violating Section 8101 of the Welfare and 116 Institutions Code. 117 (13) Any person who is described in subdivision (b) or (c) of Section 27590. 118 (f) When probation is granted in a case which comes within subdivision (e), the court 119 shall specify on the record and shall enter on the minutes the circumstances indicating that the 120 interests of justice would best be served by that disposition. 121 (g) If a person is not eligible for probation, the judge shall refer the matter to the 122 probation officer for an investigation of the facts relevant to determination of the amount of a 123 restitution fine pursuant to subdivision (b) of Section 1202.4 in all cases where the determination 124 is applicable. The judge, in his or her discretion, may direct the probation officer to investigate 125 all facts relevant to the sentencing of the person. Upon that referral, the probation officer shall 126 immediately investigate the circumstances surrounding the crime and the prior record and history 127 of the person and make a written report to the court of his or her findings. The findings shall 128 include a recommendation of the amount of the restitution fine as provided in subdivision (b) of 129 Section 1202.4. 130 (h) If a defendant is convicted of a felony and a probation report is prepared pursuant to 131 subdivision (b) or (g), the probation officer may obtain and include in the report a statement of 132 the comments of the victim concerning the offense. The court may direct the probation officer 133 not to obtain a statement if the victim has in fact testified at any of the court proceedings 134 concerning the offense. 135 (i) A probationer shall not be released to enter another state unless his or her case has 136 been referred to the Administrator of the Interstate Probation and Parole Compacts, pursuant to 137 the Uniform Act for Out-of-State Probationer or Parolee Supervision (Article 3 (commencing 138 with Section 11175) of Chapter 2 of Title 1 of Part 4) and the probationer has reimbursed the 139 county that has jurisdiction over his or her probation case the reasonable costs of processing his 140 or her request for interstate compact supervision. The amount and method of reimbursement 141 shall be in accordance with Section 1203.1b. 142 (j) In any court where a county financial evaluation officer is available, in addition to 143 referring the matter to the probation officer, the court may order the defendant to appear before 144 the county financial evaluation officer for a financial evaluation of the defendant’s ability to pay 145 restitution, in which case the county financial evaluation officer shall report his or her findings 146 regarding restitution and other court-related costs to the probation officer on the question of the 147 defendant’s ability to pay those costs. Any order made pursuant to this subdivision may be 148 enforced as a violation of the terms and conditions of probation upon willful failure to pay and at 149 the discretion of the court, may be enforced in the same manner as a judgment in a civil action, if 150 any balance remains unpaid at the end of the defendant’s probationary period. 151

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(k) Probation shall not be granted to, nor shall the execution of, or imposition of sentence 152 be suspended for, any person who is convicted of a violent felony, as defined in subdivision (c) 153 of Section 667.5, or a serious felony, as defined in subdivision (c) of Section 1192.7, and who 154 was on probation for a felony offense at the time of the commission of the new felony offense.155

(Proposed new language underlined; language to be deleted stricken)

PROPONENT: Los Angeles County Bar Association STATEMENT OF REASONS The Problem: In all felony cases in which “probation” is granted, existing law requires the defendant to be placed under the supervision of a probation officer. A “conditional sentence,” where a defendant is placed under the supervision of the court without a probation officer (i.e., ‘informal’ or ‘summary’ probation), is authorized only for infractions and misdemeanors. However, depending on the unique circumstances of the crime and the defendant, a convicted felon may not require Probation Department supervision. (See, e.g., People v. Willis (2013) 222 Cal. App. 4th 141, 148 (concurrence by Justice Suzukawa).) When both sides agree that court supervision is adequate, there is no need to expend the limited resources of the Probation Department and burden the defendant with the cost of unnecessary probation services. The Solution: If a convicted felon is eligible for probation and both sides agree, the court may place the defendant on summary probation. IMPACT STATEMENT This proposed resolution does not affect any other law, statute, or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Michael Fern, Los Angeles County District Attorney’s Office, 201 N. Figueroa St., Ste. 1600, Los Angeles, CA 90012, (213) 537-4529, sclawyer@gmail.com. RESPONSIBLE FLOOR DELEGATE: Michael Fern

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RESOLUTION 08-06-2015 DIGEST Criminal Law: Expungement of Certain Convictions of Human Trafficking Victims Adds Penal Code section 1203.43 to provide expungement procedures for selected convictions suffered by defendants who are victims of human trafficking. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution adds Penal Code section 1203.43 to provide expungement procedures for selected convictions suffered by defendants who are victims of human trafficking. This resolution should be disapproved because it is insufficiently specific and too sweeping in its articulation of the crimes for which such expungement is available. The proponent refers to the unsuccessful Assembly Bill No. 1887 (Reg. Sess. 2014) (“AB 1887”). AB 1887 was limited to violations of Penal Code section 647, subdivisions (a), (b), and (d) and Penal Code section 653.22, subdivision (a), all of which have to do with prostitution and related activities, e.g. loitering for purposes of prostitution. The proponents speculate that the bill did not succeed because of lack of discretion provided to the court, the requirement that the court find the petitioner “factually innocent,” and due to the requirement that the petitioner’s criminal records be destroyed, which would make them unavailable for use in prosecution of the human trafficking perpetrator. This resolution appears to address all of those problems but it is also too broad in its scope. It not only provides relief for “prostitution, vagrancy, and disorderly conduct,” but also provides relief for “drug possession, possession of a weapon, unauthorized street vending and other non-violent crimes” with no reference to the actual Penal Code or other sections involved. Although conviction of any of these types of crimes is an impediment to future opportunities for such a victim, it is not clear that only victims of human trafficking commit the latter group of crimes. Given the presumptions involved, there is a question as to the level of discretion a court would have in making decisions in these matters, since there is no standard to determine whether the defendant was in fact a victim of human trafficking included in the resolution. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to add California Penal Code section 1203.43 to read as follows: §1203.43 (a) An individual convicted of prostitution vagrancy, disorderly conduct, drug possession, 1 possession of a weapon, unauthorized street vending and other non-violent crimes committed as 2

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a direct result of being a victim of human trafficking under Section 236.1 or trafficking in 3 persons under the federal Trafficking Victims Protection Act (22 U.S.C. Sec. 7101 et seq.) may 4 petition the court to vacate the petitioner’s record of conviction for the offense. A court may 5 grant such petition on a finding that the defendant’s participation in the offense was a direct 6 result of being a victim of human trafficking. 7 (b) Unless impossible, the petition shall be filed in the court where the conviction was 8 entered. If the petition cannot be filed in the court where the conviction was entered, the petition 9 shall be filed in the main criminal courthouse for the county in which the conviction was entered. 10 (c) The petition may be filed anonymously or confidentially and any hearing may be 11 conducted in private, outside of the view of the public, upon a showing of good cause. A finding 12 of good cause shall exist if the petitioner demonstrates a reasonable fear for their safety based 13 upon the fact that the perpetrator of human trafficking or his or her associates have not been 14 brought to justice or continue to operate. 15 (d) No official determination or documentation is required to grant a motion under this 16 section, but official documentation from a federal, state, local, or tribal government agency 17 indicating that the defendant was a victim at the time of the offense creates a presumption that 18 the defendant’s participation in the offenses was a direct result of being a victim. 19 (e) A copy of the petition shall be served on the prosecuting attorney of the county or 20 city in which the accusatory pleading was filed at least 10 days prior to the hearing on the 21 petitioner to vacate the conviction. The prosecuting attorney may present evidence to the court at 22 the hearing. 23 (f) For purposes of this subdivision, the relief provided for may be granted 24 notwithstanding the fact that there may have been reasonable cause to believe the petitioner 25 committed the offense at the time of his or her conviction. 26 (g) In any case where a person who has been arrested is granted relief pursuant to this 27 subdivision, the law enforcement agency having jurisdiction over the offense or the court shall 28 issue a written declaration to the arrestee stating that it is the determination of the law 29 enforcement agency having jurisdiction over the offense or court that the conviction has been 30 vacated. Thereafter, the conviction shall be deemed not to have occurred and the person may 31 answer accordingly any question relating to its occurrence. 32 (h) Petitions brought pursuant to this section by persons determined to have been victims 33 of human trafficking under Section 236.1 or trafficking in persons under the federal Trafficking 34 Victims Protection Act (22 U.S.C. Sec. 7101 et seq.), shall be brought within two years of the 35 conviction. However, a waiver of the time restriction shall be granted upon showing of good 36 cause. When evaluating whether good cause exists, the court shall take into consideration 37 relevant factors, including, but not limited to, when the petitioner ceased to be a victim of human 38 trafficking or trafficking in persons, reasonable concern for the safety of the petitioner and the 39 petitioner's family, the age and capacity of the petitioner, the petitioner's ability to obtain legal 40 services, and other obstacles that may have prevented the petitioner from filing the petition 41 within the time period. 42 (i) Upon a finding under this subsection that a conviction should be vacated, the court 43 shall order all records related to the conviction to be sealed. The records shall remain sealed 44 absent a request by a government agency that they be unsealed for use in the prosecution of the 45 perpetrator of the human trafficking of the petitioner. In the event that the records are unsealed, 46 the name of the petitioner shall be redacted and shall not be disclosed. 47

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(Proposed new language underlined; language to be deleted stricken) PROPONENT: San Fernando Valley Bar Association STATEMENT OF REASONS The Problem: Victims of human trafficking who manage to extricate themselves from the situation often carry with them criminal convictions relating to prostitution, vagrancy, disorderly conduct, drug possession, possession of a weapon, unauthorized street vending, certain labor related offenses and other non-violent crimes. These convictions adversely affect their ability to get a job, enroll in educational classes, get a Visa and other things that will enable them to get on their feet and live as a productive member of society. The Solution: Allowing victims of human trafficking to petition to and have their convictions vacated and sealed will take away a significant and substantial impediment to these victims integrating into society while still maintaining a record of their conviction in the event that perpetrator of the human trafficking is ever charged and brought to trial. IMPACT STATEMENT While there will be a small burden on the criminal courts to hear these petitions, it will be insignificant to the number of petitions filed annually. CURRENT OR PRIOR RELATED LEGISLATION AB 1887 (Campos)-A bill was authored in 2014 to allow victims of human trafficking to petition to have their criminal records sealed and destroyed. This Bill stalled in committee. It is believed that it stalled in part due to the lack of discretion provided to the court, due to the requirement that the court find the petitioner “factually innocent” of the crime, and due to the requirement that the records be destroyed, thereby making the records unavailable for use in a future case against the perpetrator of human trafficking. AUTHOR AND/OR PERMANENT CONTACT: Caryn Brottman Sanders, President, San Fernando Valley Bar Association, 24307 Magic Mountain Parkway, #107, Valencia, CA 91355, (661)775-9873, fax (661)295-1582, carynsanders@sbcglobal.net. RESPONSIBLE FLOOR DELEGATE: Caryn Brottman Sanders

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RESOLUTION 08-07-2015 DIGEST Criminal Law: Including Non-Statutory Dismissals to Two-Dismissal Rule Amends Penal Code section 1387 to include dismissal based on denial of substantial rights as affecting the refiling of charges. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Penal Code section 1387 to include dismissal based on denial of substantial rights as affecting the refiling of charges. This resolution should be approved in principle because it is consistent with the purposes of the statute and current law is not clear. Section 1387, often described as the “two-dismissal rule,” establishes that “two dismissals pursuant to section 1385, 859b, 861, 871 or 995, bar retrial on felony charges except in limited situations.” (People v. Hatch (2000) 22 Cal.4th 260, 270.) It is meant to curtail prosecutorial harassment by limiting the number of times charges may be refiled, and reducing the possibility prosecutors might use the power to dismiss and refile to forum shop or evade speedy trial rights. (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1018.) However, not every dismissal implicates the “two-dismissal rule” because not every defect in a prosecution may be raised under one of the enumerated statutes. For example, where the deprivation of a substantial right is not shown in the transcript of the preliminary hearing, a motion under section 995 does not lie and the issue is properly raised in a nonstatutory motion to dismiss. (Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 271.) There is no reason such a dismissal should not have the same preclusive effect for purposes of refiling of charges as a statutory motion. Related to Resolutions 08-01-2015, 08-04-2015, 08-09-2015 which all propose a requirement that the relitigation of the enumerated dismissal motions should be before the same bench officer. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Penal Code section 1387 to read as follows: §1387 (a) An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 1 995, or by a non-statutory motion to dismiss because the defendant has been denied a substantial 2 right by the prosecution or law enforcement, is a bar to any other prosecution for the same 3 offense if it is a felony or if it is a misdemeanor charged together with a felony and the action has 4 been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995, or by a 5

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non-statutory motion to dismiss because the defendant has been denied a substantial right by the 6 prosecution or law enforcement

(1) That substantial new evidence has been discovered by the prosecution which would 11 not have been known through the exercise of due diligence at, or prior to, the time of termination 12 of the action. 13

, or if it is a misdemeanor not charged together with a felony, 7 except in those felony cases, or those cases where a misdemeanor is charged with a felony, 8 where subsequent to the dismissal of the felony or misdemeanor the judge or magistrate finds 9 any of the following: 10

(2) That the termination of the action was the result of the direct intimidation of a 14 material witness, as shown by a preponderance of the evidence. 15 (3) That the termination of the action was the result of the failure to appear by the 16 complaining witness, who had been personally subpoenaed in a prosecution arising under 17 subdivision (e) of Section 243 or Section 262, 273.5, or 273.6. This paragraph shall apply only 18 within six months of the original dismissal of the action, and may be invoked only once in each 19 action. Nothing in this section shall preclude a defendant from being eligible for diversion. 20 (4) That the termination of the action was the result of the complaining witness being 21 found in contempt of court as described in subdivision (b) of Section 1219 of the Code of Civil 22 Procedure. This paragraph shall apply only within six months of the original dismissal of the 23 action, and may be invoked only once in each action. 24 (b) Notwithstanding subdivision (a), an order terminating an action pursuant to this 25 chapter is not a bar to another prosecution for the same offense if it is a misdemeanor charging 26 an offense based on an act of domestic violence, as defined in subdivisions (a) and (b) of Section 27 13700, and the termination of the action was the result of the failure to appear by the 28 complaining witness, who had been personally subpoenaed. This subdivision shall apply only 29 within six months of the original dismissal of the action, and may be invoked only once in each 30 action. Nothing in this subdivision shall preclude a defendant from being eligible for diversion. 31 (c) An order terminating an action is not a bar to prosecution if a complaint is dismissed 32 before the commencement of a preliminary hearing in favor of an indictment filed pursuant to 33 Section 944 and the indictment is based upon the same subject matter as charged in the dismissed 34 complaint, information, or indictment. 35 However, if the previous termination was pursuant to Section 859b, 861, 871, or 995, the 36 subsequent order terminating an action is not a bar to prosecution if: 37 (1) Good cause is shown why the preliminary examination was not held within 60 days 38 from the date of arraignment or plea. 39 (2) The motion pursuant to Section 995 was granted because of any of the following 40 reasons: 41 (A) Present insanity of the defendant. 42 (B) A lack of counsel after the defendant elected to represent himself or herself rather 43 than being represented by appointed counsel. 44 (C) Ineffective assistance of counsel. 45 (D) Conflict of interest of defense counsel. 46 (E) Violation of time deadlines based upon unavailability of defense counsel. 47 (F) Defendant’s motion to withdraw a waiver of the preliminary examination. 48 (3) The motion pursuant to Section 995 was granted after dismissal by the magistrate of 49 the action pursuant to Section 871 and was recharged pursuant to Section 739. 50

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(Proposed new language underlined; language to be deleted stricken) PROPONENT: Orange County Bar Association STATEMENT OF REASONS The Problem: Current law does not provide for Penal Code section 1387’s protections against multiple prosecutions for the same offense to dismissals obtained by a non-statutory motion to dismiss based upon the denial of a substantial right by the prosecution or law enforcement. Currently, there are no clear limitations to re-filing charges following even multiple dismissals for violations of the defendant’s substantial rights by the prosecution or law enforcement at preliminary hearings. Lack of restrictions permit repeated attempts to charge an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity, often keeping him in custody, as well as enhancing the possibility that even though innocent he may be found guilty. This resolution extends existing provisions of section 1387 to dismissals on non-statutory grounds for violations of a criminal defendant’s state or constitutional rights by the prosecution or law enforcement. The Solution: Would extend protections against repeated attempts to charge a defendant where the same charges were dismissed on the basis of a non-statutory motion to dismiss for violations of a criminal defendant’s state or constitutional rights by the prosecution or law enforcement. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Doreen Boxer, 19200 Von Karman Avenue, Suite 900, Irvine, CA 92612, voice (949) 261 – 2700, fax (949) 266 – 0330, e-mail doreen@doreenboxer.com RESPONSIBLE FLOOR DELEGATE: Doreen Boxer

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RESOLUTION 08-08-2015

DIGEST Criminal Law: Prosecutorial Duty to Disclose Exculpatory Evidence. Amends Penal Code section 1054.1 to require disclosure of exculpatory evidence and adds Penal Code section 1183 requiring further investigation by prosecutors. RESOLUTION COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Penal Code section 1054.1 to require disclosure of exculpatory evidence and adds Penal Code section 1183 requiring further investigation by prosecutors. This resolution should be disapproved because the prosecutor already has the duty to disclose exculpatory evidence, and the addition of Penal Code section 1183 places an unjust burden on prosecutors to perform an investigation on the defendant’s behalf. Penal Code section 1054.1 already requires prosecutors to timely disclose to the defense all known, and unprivileged evidence or information that tends to negate the guilt of the accused, or mitigates the offense. (Brady v. Maryland (1963) 373 U.S. 83; People v. Lucas (2014) 60 Cal.4th 153, reh’g denied, petition for cert. denied on June 1, 2015.) The burden of proving a criminal prosecution falls on the prosecuting authority. Prosecutors are already required to timely disclose any exculpatory evidence with an accused or convicted defendant. Therefore, the amendment to Penal Code section 1054.1 is unnecessary. While the disclosure of later-discovered, post-conviction, exculpatory evidence would further justice, the proposed addition of Penal Code section 1183 goes far beyond that. This proposed section would force prosecutors to perform an investigation determining whether the defendant was properly convicted. In effect, this section would require the prosecutor to do the defense attorney’s job, and track down evidence for the defendant. The law should not require attorneys to advocate for their opponent. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Associations recommends that legislation be sponsored to amend Penal Code section 1054.1 and to add Penal Code section 1183 to read as follows: §1054.1 The prosecuting attorney shall disclose to the defendant or his or her attorney all of the 1 following materials and information, if it is in the possession of the prosecuting attorney or if the 2 prosecuting attorney knows it to be in the possession of the investigating agencies: 3

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(a) The names and addresses of persons the prosecutor intends to call as witnesses at trial. 4 (b) Statements of all defendants. 5 (c) All relevant real evidence seized or obtained as a part of the investigation of the 6 offenses charged. 7 (d) The existence of a felony conviction of any material witness whose credibility is 8 likely to be critical to the outcome of the trial. 9 (e) Any exculpatory evidence, including but not limited to, timely disclosure to the 10 defense of all evidence or information known to the prosecutor that tends to negate the guilt of 11 the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense 12 and to the court all unprivileged mitigating information known to the prosecutor, except when 13 the prosecutor is relieved of this responsibility by a protective order of a court. 14 (f) Relevant written or recorded statements of witnesses or reports of the statements of 15 witnesses whom the prosecutor intends to call at the trial, including any reports or statements of 16 experts made in conjunction with the case, including the results of physical or mental 17 examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer 18 in evidence at the trial. 19 20 §1183 21 a) Notwithstanding any limitation of time contained anywhere else in any code, at any 22 time a prosecutor knows of new, credible and material evidence creating a reasonable likelihood 23 that a convicted defendant did not commit an offense of which the defendant was convicted, the 24 prosecutor shall: 25 (1) promptly disclose that evidence to an appropriate court or authority, and 26 (2) if the conviction was obtained in the prosecutor’s jurisdiction, 27

(i) promptly disclose that evidence to the defendant and his or her attorney unless a court 28 authorizes delay, and 29

(ii) undertake further investigation, or make reasonable efforts to cause an investigation, 30 to determine whether the defendant was convicted of an offense that the defendant did not 31 commit. 32 (b) When a prosecutor knows of clear and convincing evidence establishing that a 33 defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not 34 commit, the prosecutor shall seek to remedy the conviction. 35

(Proposed new language underlined; language to be deleted stricken.) PROPONENT: Los Angeles County Bar Association. STATEMENT OF REASONS: The Problem: The problem, to put it simply, is wrongful convictions. Justice depends upon each part of the criminal justice system doing its job. This means that prosecutors, who have special responsibilities to ensure that justice is done, must disclose exculpatory evidence in a timely manner. In addition, there must be a duty, and a mechanism, for prosecutors to remedy wrongful convictions.

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The Solution: The American Bar Association has recognized that prosecutors play a very special role in the criminal justice system. Their job is not necessarily to obtain a conviction, rather it is to see that justice is done. The ABA model Rules of Professional Conduct mandate that prosecutors disclose ALL exculpatory material and mandate that prosecutors act to remedy wrongful convictions. These rules have not been adopted in California. This resolution adopts codifies Model Rule 3.8, subdivisions (d), (g), and (h) into law. Justice isn’t just a goal, it’s a requirement. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Mark Harvis, Los Angeles County Public Defender, 320 W. Temple Ste 590, Los Angeles, CA 90012 213 974-3066, mharvis@pubdef.lacounty.gov RESPONSIBLE FLOOR DELEGATE: Mark Harvis

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RESOLUTION 08-09-2015

DIGEST Criminal Law: Re-filing Charges Based on Constitutional Violation by Prosecution This resolution amends Government Code section 70212 to require re-filed charges dismissed on non-statutory grounds be assigned to the same judge who decided the original dismissal. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Government Code section 70212 to require re-filed charges dismissed on non-statutory grounds be assigned to the same judge who decided the original dismissal. This resolution should be disapproved because it creates a discrepancy in how re-filed cases are assigned to judicial officers. Currently, all criminal matters that are dismissed and later re-filed are randomly assigned to a judge according to the court’s usual case assignment system. This resolution would create a special exception for criminal matters that are dismissed on non-statutory grounds and later refiled. For such cases, the re-filed matter must be assigned to the same judicial officer who decided the initial case. There is no explanation for creating a special assignment system for criminal matters that are dismissed on non-statutory grounds but not on statutory grounds. The resolution analogizes this situation to that of re-litigating a motion to suppress evidence where the same judge who heard the initial motion must hear the renewed motion. However, requiring that the same to judge hear a particular motion does not support requiring that the same judge be assigned to an entire case. Related to Resolutions 08-01-2015, 08-04-2015, and 08-07-2015. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Government Code section 70212 to read as follows: §70212 Officers, employees and other personnel; court locations and records; business of the court; judicial powers Except as provided by statute to the contrary, in a county in which the municipal and 1 superior courts become unified, the following shall occur automatically in each preexisting 2 municipal and superior court: 3 (a) Previously selected officers (including subordinate judicial officers), employees, and 4 other personnel who serve the court become the officers and employees of the superior court. 5 (b) Preexisting court locations are retained as superior court locations. 6

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(c) Preexisting court records become records of the superior court. 7 (d) Pending actions, trials, proceedings, and other business of the court become pending 8 in the superior court under the procedures previously applicable to the matters in the court in 9 which the matters were pending. 10 (e) Matters of a type previously subject to rehearing by a superior court judge remain 11 subject to rehearing by a superior court judge, other than the judge who originally heard the 12 matter. 13 (f) Penal Code procedures that necessitate superior court review of, or action based on, a 14 ruling or order by a municipal court judge shall be performed by a superior court judge other 15 than the judge who originally made the ruling or order. 16 (g) Subpoenas, summons of jurors, and other process issued by the court shall be 17 enforceable by the superior court. 18 (h) The superior court and each judge of the superior court has all the powers and shall 19 perform all of the acts that were by law conferred on, or required of, any court superseded by the 20 superior court and any judge of the superseded court, and all laws applicable to the superseded 21 court not inconsistent with the statutes governing unification of the municipal and superior courts 22 apply to the superior court and to each judge of the court. 23

(i) In a criminal case where the prosecutor re-files charges that were previously dismissed 24 based upon the denial of a violation of the criminal defendant’s state or federal constitutional 25 rights by the prosecution or law enforcement, the case containing the re-filed charges must be 26 assigned to the judicial officer that granted the dismissal of the charges, unless that judicial 27 officer is unavailable.28

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Orange County Bar Association STATEMENT OF REASONS The Problem: Penal Code section 1538.5 provides for a motion to suppress evidence where either: (1) a search or seizure without a warrant was unreasonable, or (2) a search or seizure with a warrant was unreasonable due to a limited number of grounds which are, in essence, a criminal defendant’s state or federal constitutional rights against unreasonable search and seizure. Pen. Code, § 1538.5, subds. (a)(1).In 1993, the legislature added language to Penal Code section 1538.5 stating, among other things: “Relitigation of the motion shall be heard by the same judge who granted the motion at the first hearing if the judge is available.” Pen. Code, § 1538.5, subd. (p). This added language applies to any re-filing of the charges and was specifically intended to prevent the prosecution from forum shopping. Soil v. Superior Court (1997) 55 Cal.App.4th 872, 878. The California Supreme Court has interpreted this language to preclude peremptory challenges that make a judge unavailable. Ibid. Currently, there are no provisions similar to Penal Code section 1538.5, subd. (p) to prevent forum shopping following dismissal on non-statutory grounds, even where such dismissal is based upon the violation of a criminal defendant’s state or constitutional rights by the prosecution. Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 271 [approving the nonstatutory motion to dismiss], citing Murgia v. Municipal Court (1975) 15 Cal.3d 286, 294, fn. 4. Prosecutors at present may conduct some degree of forum shopping after losing these types of motions to dismiss.

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The Solution: Would impede forum shopping after a non-statutory motion to dismiss based upon the denial of a substantial right by the prosecution. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Doreen Boxer, 19200 Von Karman Avenue, Suite 900, Irvine, CA 92612, voice (949) 261 – 2700, fax (949) 266 – 0330, e-mail doreen@doreenboxer.com RESPONSIBLE FLOOR DELEGATE: Doreen Boxer

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RESOLUTION 08-10-2015 DIGEST Police Use of Force Training: Elimination of POST Training on Chokeholds Adds Penal Code section 13510.6 to eliminate peace officer training on the use of choke holds and carotid restraint control holds. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution adds Penal Code section 13510.6 to eliminate peace officer training on the use of choke holds and carotid restraint control holds. This resolution should be disapproved because officers may need to use the holds in certain situations and since the holds are not outlawed, peace officers should be properly trained in how to safely use them. The proponent argues this resolution is necessary because of the risk of death from choke holds and carotid restraint control holds and “it is time to eliminate the use of choke-holds from police practice in California.” However, this resolution does not outlaw the use of choke holds and carotid restraint holds, the resolution only eliminates training on the use of these techniques. As long as the technique is legal, peace officers should be properly trained in how to safely use the techniques to minimize the risk of unintended death. In addition, many police departments allow their officers to use choke hold and carotid restraint control holds only in lethal force situations. (See, e.g., Los Angeles Police Department, Training Bulletin re Use of Force: Carotid Restraint Control Hold; Metropolitan Police Department, District of Columbia General Order re Use of Force dated October 7, 2002). Unfortunately, police officers face situations where the use of lethal or less lethal force is necessary to protect the life of an officer or members of the public. Just as officers are trained in the proper use of a firearm, which also causes death, officers need to be trained in the proper use of these techniques. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Penal Code section 13510 to read as follows: §13510.5 For the purpose of maintaining the level of competence of state law enforcement officers, 1 the commission shall adopt, and may, from time to time amend, rules establishing minimum 2 standards for training of peace officers as defined in Chapter 4.5 (commencing with Section 830) 3 of Title 3 of Part 2, who are employed by any railroad company, the California State Police 4 Division, the University of California Police Department, a California State University police 5 department, the Department of Alcoholic Beverage Control, the Division of Investigation of the 6 Department of Consumer Affairs, the Wildlife Protection Branch of the Department of Fish and 7

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Game, the Department of Forestry and Fire Protection, including the Office of the State Fire 8 Marshal, the Department of Motor Vehicles, the California Horse Racing Board, the Bureau of 9 Food and Drug, the Division of Labor Law Enforcement, the Director of Parks and Recreation, 10 the State Department of Health Care Services, the Department of Toxic Substances Control, the 11 State Department of Social Services, the State Department of State Hospitals, the State 12 Department of Developmental Services, the Office of Statewide Health Planning and 13 Development, and the Department of Justice. All rules shall be adopted and amended pursuant to 14 Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the 15 Government Code. For the purpose of maintaining the level of competence of state law 16 enforcement officers, the commission shall adopt, and may, from time to time amend, rules 17 establishing minimum standards for training of peace officers as defined in Chapter 4.5 18 (commencing with Section 830) of Title 3 of Part 2, who are employed by any railroad company, 19 the California State Police Division, the University of California Police Department, a California 20 State University police department, the Department of Alcoholic Beverage Control, the Division 21 of Investigation of the Department of Consumer Affairs, the Wildlife Protection Branch of the 22 Department of Fish and Game, the Department of Forestry and Fire Protection, including the 23 Office of the State Fire Marshal, the Department of Motor Vehicles, the California Horse Racing 24 Board, the Bureau of Food and Drug, the Division of Labor Law Enforcement, the Director of 25 Parks and Recreation, the State Department of Health Care Services, the Department of Toxic 26 Substances Control, the State Department of Social Services, the State Department of State 27 Hospitals, the State Department of Developmental Services, the Office of Statewide Health 28 Planning and Development, and the Department of Justice. All rules shall be adopted and 29 amended pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of 30 Title 2 of the Government Code. 31 32 §13510.6 33 The commission’s training standards shall not include the use of a “carotid restraint 34 control hold” or “choke hold.” 35

(Proposed new language underlined; language to be deleted stricken) PROPONENT: The Bar Association of San Francisco STATEMENT OF REASONS The Problem: When a police officer applies a choke-hold in order to physically control a person, then there is a chance that the person may die as a result. The risk of death to the person being controlled is higher if the person has certain health conditions, such as obesity, breathing conditions, or high blood pressure. The goal is for the police officer to apply enough pressure to the carotid artery in the person’s neck so that the person will lose consciousness, so that it will then be easy to apply physical restraints to the person. But what happens when the police officer has also crushed the person’s airway? And what happens when the person stops breathing, which causes the person’s heart to stop beating? When a police officer applies a choke-hold, the officer is attempting to cause the person to go unconscious. But, at the same time, the officer may be strangulating the person. The police have several other options to bring a person under control, and they should always avoid touching a person’s neck. Therefore, it is time to

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eliminate the use of choke-holds from police practice in California. The Commission on Police Officer Standards and Training (POST) is the leading police officer training entity in the state. POST has a training module, LD 33, for “arrest and control,” that contains a lesson plan about the use of choke-holds. After the lesson, then the student must demonstrate the “proper” application of a choke-hold. Module LD 33 is available at: https://www.post.ca.gov/regular-basic-course-training-specifications.aspx.Module LD 33 states: “Demonstrate the prescribed application of the carotid restraint control hold,” and “Describe potential effects associated with the improper application of a carotid restraint control hold.” LD 33 at 3. This section asserts that there is a “safe” way to apply a choke-hold, and an “unsafe” way to apply a choke-hold. Then, in order to earn the training certificate, the student must “demonstrate competency in the carotid restraint control hold.” LD 33 at 9. This means that the student must show that he or she knows how to apply the skill. As a result of these sections within training module LD 33, POST is training police officers to apply choke-holds so that they can perform choke-holds in the field. The Solution: This resolution will discourage police officers from applying choke-holds to people by eliminating the training section and the testing requirement about choke-holds from the POST curriculum. Although following the POST standards is voluntary, if POST, as the main police officer training entity in the state, eliminates the use of choke-holds from its curriculum and scope of practice, then that will encourage other California law enforcement agencies to do the same. IMPACT STATEMENT This resolution does not affect any other statute or case law. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Catherine Rucker, 20 Azalea Place, Novato, CA 94949Cell: 415-246-6647, catherinerucker@me.com RESPONSIBLE FLOOR DELEGATE: Catherine Rucker

COUNTERARGUMENTS TO RESOLUTION 08-10-2015 SACRAMENTO COUNTY BAR ASSOCIATION Resolution 08-10-2015 would eliminate training for peace officers, as defined, in the use of the carotid control hold, also known as the choke hold. The proponent believes that since using choke holds may lead to the death of the person being controlled by the peace officer, eliminating the training in the proper methods of this technique, as described in POST (Peace Officer Standards and Training) Training Module LD 33, will “discourage police officers from applying choke-holds” and thereby fewer people will die.

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The logic of this resolution is lacking. Peace officers unfortunately find themselves in hand-to-hand combat with aggressive people on a regular basis. Receiving proper training in effective techniques to subdue an aggressor seems like a critical element in peace officer training to reduce the incidence of death or serious bodily injury, to either the aggressor or the officer. Removing the training will not remove the need for peace officers to resort to hand-to-hand combat. Moreover, a lack of training may well result in more injury and death including of peace officers who would not be provided with appropriate training but still find themselves confronting situations in which they must subdue aggressors without resorting to weapons. In other words, even in the absence of training, law enforcement officers will still find themselves in situations in which a choke hold is necessary. Their lack of skill and training in the “safer” way to restrain someone with a chokehold is only more likely than not to result in someone’s injury. By analogy, the absence of a requirement to be trained in the use of firearms for people who have them has not reduced or eliminated the inappropriate use of firearms. The absence of sex education in junior high and high school curricula in Crane, Texas, does not appear to have stopped sexual activity among teens. It has, however, resulted in an outbreak of Chlamydia in several school districts in the region. Bad things happen when we eschew education. For these reasons, the Sacramento County Bar Association recommends Resolution 08-10-2015 be disapproved.

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RESOLUTION 08-11-2015

DIGEST Criminal Law: No Criminal Liability When Photographing Law Enforcement Amends California Penal Code section 148 to exempt individuals photographing police activity from criminal liability for obstruction of justice when certain criteria are met. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: Similar to Resolution 12-01-2012, which was approved in principle. Reasons: This resolution amends California Penal Code section 148 to exempt individuals photographing police activity from criminal liability for obstruction of justice when certain criteria are met. This resolution should be approved in principle because Courts have consistently held that the First Amendment protects this right, and because a bill providing for the exact change the proponent seeks has already been introduced and is pending in the California Legislature as Senate Bill 411(Reg. Sess. 2015-2016.) The proposed amendment specifies where a photographer may stand and establishes that a photographer may not be arrested simply because the subject of an investigation does not wish to be photographed. However, existing case law already establishes this right -- passing a resolution, and eventually legislation, as drafted, does not cure the specific problem noted by the proponent – that certain courts are choosing to not follow existing law. Specifically, Federal case law establishes that taking photographs of police carrying out their duties in public is protected by the First Amendment. (See, e.g., Glik v. Cunniffe, (1st Cir. 2011) 655 F.3d 78, 82-83.) The proponent cites one case, involving a celebrity who did not wish to be filmed while being detained by law enforcement, as the reason for this resolution. The issue in that situation, however, is that the court did not adhere to already existing law, and instead chose to be influenced by a celebrity defendant. This resolution should be approved in principle on the basis that the First Amendment already provides these protections, and further, a bill providing this exact relief (which was co-sponsored by CCBA) is on the Governor’s desk awaiting signature as of July 25, 2015. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to Amend California Penal Code section 148 to read as follows: §148. (a) (1) Except as provided in subsection (g), every person who willfully resists, delays, or 1 obstructs any public officer, peace officer, or an emergency medical technician, as defined in 2 Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or 3 attempt to discharge any duty of his or her office or employment, when no other punishment is 4

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prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by 5 imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment. (2) 6 Except as provided by subdivision (d) of Section 653t, every person who knowingly and 7 maliciously interrupts, disrupts, impedes, or otherwise interferes with the transmission of a 8 communication over a public safety radio frequency shall be punished by a fine not exceeding 9 one thousand dollars ($1,000), imprisonment in a county jail not exceeding one year, or by both 10 that fine and imprisonment. 11 (b) Every person who, during the commission of any offense described in subdivision (a), 12 removes or takes any weapon, other than a firearm, from the person of, or immediate presence 13 of, a public officer or peace officer shall be punished by imprisonment in a county jail not to 14 exceed one year or pursuant to subdivision (h) of Section 1170. 15

(c) Every person who, during the commission of any offense described in subdivision (a), 16 removes or takes a firearm from the person of, or immediate presence of, a public officer or 17 peace officer shall be punished by imprisonment pursuant to subdivision (h) of Section 1170. 18

(d) Except as provided in subdivision (c) and notwithstanding subdivision (a) of Section 19 489, every person who removes or takes without intent to permanently deprive, or who attempts 20 to remove or take a firearm from the person of, or immediate presence of, a public officer or 21 peace officer, while the officer is engaged in the performance of his or her lawful duties, shall be 22 punished by imprisonment in a county jail not to exceed one year or pursuant to subdivision (h) 23 of Section 1170. In order to prove a violation of this subdivision, the prosecution shall establish 24 that the defendant had the specific intent to remove or take the firearm by demonstrating that any 25 of the following direct, but ineffectual, acts occurred: 26

(1) The officer's holster strap was unfastened by the defendant. 27 (2) The firearm was partially removed from the officer's holster by the defendant. 28 (3) The firearm safety was released by the defendant. 29 (4) An independent witness corroborates that the defendant stated that he or she intended 30

to remove the firearm and the defendant actually touched the firearm. 31 (5) An independent witness corroborates that the defendant actually had his or her hand 32

on the firearm and tried to take the firearm away from the officer who was holding it. 33 (6) The defendant's fingerprint was found on the firearm or holster. 34 (7) Physical evidence authenticated by a scientifically verifiable procedure established 35

that the defendant touched the firearm. 36 (8) In the course of any struggle, the officer's firearm fell and the defendant attempted to 37

pick it up. 38 (e) A person shall not be convicted of a violation of subdivision (a) in addition to a 39

conviction of a violation of subdivision (b), (c), or (d) when the resistance, delay, or obstruction, 40 and the removal or taking of the weapon or firearm or attempt thereof, was committed against 41 the same public officer, peace officer, or emergency medical technician. A person may be 42 convicted of multiple violations of this section if more than one public officer, peace officer, or 43 emergency medical technician are victims. 44

(f) This section shall not apply if the public officer, peace officer, or emergency medical 45 technician is disarmed while engaged in a criminal act. 46

(g) This section shall not apply to persons who photograph officers conducting 47 investigations or performing their duties, provided the photographer stands at least 20 feet from 48 the individual being investigated or behind a police line if one is established. Further, the fact 49

08-11-2012 Page 3 of 4

that the subject of the investigation reacts negatively to photography, resulting in delay of the 50 investigation, shall not constitute a violation of subsection (a). 51

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Beverly Hills Bar Association STATEMENT OF REASONS The Problem: California law does not protect the First Amendment rights of persons who photograph law enforcement officers carrying out their duties in public by establishing where photographers may lawfully stand to take photographs. Further Penal Code section 148(a) subjects the photographer to potential prosecution if the subject of an investigation reacts negatively to the photography, delaying the investigation. This Resolution arises out of a case where a passerby who photographed a DUI investigation of a celebrity was arrested and prosecuted under section 148(a) for delaying and obstructing a police investigation. Federal case law establishes that taking photographs of police carrying out their duties in public is protected by the First Amendment. See Glik v. Cunniffe, 655 F.3d 78, 82-83 (1st Cir. 2011), and the cases there cited. Moreover, the “First Amendment right to gather news is . . . not one that inures solely to the benefit of the news media; rather, the public's right of access to information is coextensive with that of the press. Id. The Solution: This Resolution establishes where photographers may stand to take photographs of a police investigation and makes it clear the reactions of a criminal suspect who wishes to avoid photography may not subject the photographer to criminal prosecution. The proposed amendment fosters the exercise of First Amendment rights while promoting transparency in law enforcement and protecting the rights of both police and criminal suspects. U.S. Supreme Court case law establishes First Amendment rights may not be curtailed simply because the subject of the speech finds it outrageous or emotionally distressing or because the protected expressive conduct is generally offensive to public officials. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988); Cohen v. California, 403 U.S. 15 (1971). Conduct protected by the First Amendment may not be abridged simply because it is likely to provoke an angry reaction from an audience. See Texas v. Johnson, 491 U.S. 397, 408-409 (1989). The angry reaction is referred to as the “Heckler’s Veto,” and the law is clear that those offended by First Amendment expression may not enlist the government to curtail it. See Center for Bio-Ethical Reform, Inc. v. Los Angeles County, etc., 533 F.3d 780, 787-788 (2008). The proposed amendment specifies where a photographer may stand and establishes that a photographer may not be arrested simply because the subject of an investigation does not wish to be photographed. IMPACT STATEMENT This Resolution would not affect any other statute or case law. CURRENT OR PRIOR RELATED LEGISLATION Senate Bill 411 (Lara (D- Bell Gardens)) currently pending.

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AUTHOR AND/OR PERMANENT CONTACT: Howard S Fredman; Fredman Lieberman Pearl LLP; 1875 Century Park East, Suite 2230, Los Angeles, CA 90067-2522; Phone: 310-226-6796; Fax: 310-226-6797; hsflawyer@aol.com. RESPONSIBLE FLOOR DELEGATE: Howard S Fredman; FREDMAN LIEBERMAN PEARL LLP; 1875 Century Park East, Suite 2230, Los Angeles, CA 90067-2522; Phone: 310-226-6796; Fax: 310-226-6797; hsflawyer@aol.com.

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RESOLUTION 09-01-2015 DIGEST Family Law: Deletes Reference to Family Code section 20102 from Family Code section 7612. Amends Family Code section 7612 to delete reference to Family Code section 20102, which became inoperable in 1993. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Family Code section 7612 to delete reference to Family Code section 20102, which became inoperable in 1993. This resolution should be approved in principle because Family Code section 20102 failed to become operative with the expiration of a pilot project and was repealed by statute in 1993. This resolution cleans up an obsolete reference and should therefore be approved in principle. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Family Code section 7612 to read as follows: §7612 (a) Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3 1 (commencing with Section 7570) of Part 2 or in Section 20102, a presumption under Section 2 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an 3 appropriate action only by clear and convincing evidence. 4

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem: Existing law contains a reference to Family Code section 20102 in Family Code section 7612. Family Code section 20102 was repealed in 1993, hence the reference to it in Family Code section 7612 is obsolete. The Solution: This Resolution deletes the reference to Family Code section 20102 from Family Code section 7612.

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IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Mary V.J. Cataldo, Esq., Procopio, Cory, Hargreaves & Savitch, LLP, 12544 High Bluff Drive, Ste. 300, San Diego, CA 92130; (760) 444-1773; mary.cataldo@procopio.com RESPONSIBLE FLOOR DELEGATE: Mary V.J. Cataldo, Esq.

SECTION COMMENTS TO RESOLUTION 09-01-2015 FAMILY LAW SECTION OF THE STATE BAR OF CALIFORNIA Approve

Rationale: The Executive Committee of the Family Law Section of the State Bar of California (FLEXCOM) approves this Resolution as being necessary given the repeal of the referenced Code Section.

This position is only that of the FAMILY LAW SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California.

Disclaimer:

Membership in the FAMILY LAW SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

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RESOLUTION 09-02-2015 DIGEST Spousal Transfers: Presumption of Undue Influence Amends Family Code section 721 to provide that a presumption of undue influence that applies to interspousal transactions will not apply to transfers that take effect or become irrevocable at one spouse’s death. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Family Code section 721 to provide that a presumption of undue influence that applies to interspousal transactions will not apply to transfers that take effect or become irrevocable at one spouse’s death. This resolution should be disapproved because there is no ambiguity to resolve and the resolution as written creates an unnecessary exception. In California, property-related transactions between spouses are subject to a duty of the highest good faith and fair dealing. This duty stems from the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. The duty prohibits a spouse from taking any unfair advantage of the other. Thus, if one spouse secures an advantage from a property transaction, a statutory presumption arises under section 721 that the advantaged spouse exercised undue influence and the transaction will be set aside unless the advantaged spouse can rebut the presumption, by clear and convincing evidence. (See, e.g., In re Marriage of Fossum (2011) 192 Cal.App.4th 336.) The spousal presumption of undue influence will arise when a prima facie case is made showing: (1) the existence of a confidential relationship (presumed when parties are married), (2) a transaction based on that relationship, and (3) either an advantage by one spouse or unfairness of the agreement. (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 293-294.) The proponent asserts that Lintz v. Lintz (2014) 222 Cal.App.4th 1346, creates uncertainty by applying the presumption of undue influence to a will or other estate instrument created unilaterally by one spouse to benefit the other. However, estate planning undertaken by one spouse is not a “transaction between spouses” and so is already exempt from the application of the presumption. Joint estate planning transactions, such as those that occurred in Lintz, are properly subject to the presumption; a rule exempting these transactions would undermine the public policy behind the spousal fiduciary duties. (Id., at p. 1353 [the presumption of undue influence clearly applied to the transmutation and the creation of the trust].) It should also be noted that pursuant to Probate Code sections 143 and 144, Family Code section 721 does not apply to a waiver of a surviving spouse’s inheritance and probate rights.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend Family Code section 721 to read as follows: §721 (a) Subject to subdivision (b), either spouse may enter into any transaction with the other, 1 or with any other person, respecting property, which either might if unmarried. 2 (b) Except as provided in Sections 143, 144, 146, 16040, and 16047of the Probate Code, 3 in transactions between themselves, spouses are subject to the general rules governing fiduciary 4 relationships that control the actions of persons occupying confidential relations with each other. 5 This confidential relationship imposes a duty of the highest good faith and fair dealing on each 6 spouse, and neither shall take any unfair advantage of the other. This confidential relationship is 7 a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as 8 provided in Sections 16403, 16404, and 16503 of the Corporations Code, including, but not 9 limited to, the following: 10 (1) Providing each spouse access at all times to any books kept regarding a transaction 11 for the purposes of inspection and copying. 12 (2) Rendering upon request, true and full information of all things affecting any 13 transaction that concerns the community property. Nothing in this section is intended to impose a 14 duty for either spouse to keep detailed books and records of community property transactions. 15 (3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from 16 any transaction by one spouse without the consent of the other spouse that concerns the 17 community property. 18 (c)

A transfer between spouses that takes effect or becomes irrevocable at the transferor’s 19 death is not a transaction within the meaning of this section. 20

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Sacramento County Bar Association STATEMENT OF REASONS The Problem

…[I]n

: Existing law is unclear regarding whether or when standard spousal property transfers taking effect at the transferor’s death create a presumption of undue influence by the transferee under Family Code section 721 (“Section 721”). Lintz v. Lintz (2014) 222 Cal.App.4th 1346 creates estate planning uncertainty by suggesting that standard spousal property transfers taking effect at the transferor’s death create a presumption of undue influence by the transferee under Section 721. In Lintz, revocable trust terms changed over time to improve the surviving spouse’s situation to the point where she controlled the husband’s estate and could exclude his children. The court held that with respect to amendments after a certain point, the probate court should have applied a presumption of undue influence under Subsection (b) of Section 721, which states in relevant part as follows:

transactions between themselves, spouses are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair

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dealing on each spouse, and neither shall take any unfair advantage

The central portions of the court’s analysis state as follows:

of the other….[Emphasis added]

Family Code section 721 applies here. ...[T]here is no indication in the record before us that the probate court applied the presumption of undue influence arising from that section. The presumption should have been applied …. The trust advantaged defendant [wife] by …giving [her] the right to … pass decedent’s property either to her own children or to her individual estate. 222 Cal.App.4th at page 1353. This analysis has numerous flaws. First, Section 721 applies only to “transactions” between spouses, but there is no definition of “transaction” for this purpose, and typical spousal estate planning transfers that take effect or become irrevocable at the transferor’s death do not meet standard “transaction” definitions. Second, Section 721 mentions neither undue influence nor a presumption. Third, Section 721applies only when one spouse takes an “unfair advantage” of the other, but the court did not consider the fairness of the transfers. Fourth, the court did not analyze whether a spouse’s improvement in position is relative to the spouse’s intestate share or relative to a prior estate planning document, and either approach raises policy concerns and the potential for irrational results. Finally, the court did not indicate whether the presumption applies even when the transferring documents take effect at death or are revocable and, therefore, the transferee spouse’s position does not legally improve until the transferor’s death. The court issued an opinion that creates significant uncertainty in standard spousal estate planning. The Solution

: This Resolution would propose to eliminate this uncertainty through an amendment to Section 721. Because Family Code Section 721 applies only to a “transactions,” amending that statute to exclude from the definition of a “transaction” spousal transfers taking effect or becoming irrevocable at the transferor’s death would resolve most of the uncertainty Lintz has created.

IMPACT STATEMENT The proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Sil Reggiardo, Downey Brand LLP 621 Capitol Mall, Suite 1800, Sacramento, CA 95814-4731, (916) 520-5374 sreggiardo@downeybrand.com. RESPONSIBLE FLOOR DELEGATE: Sil Reggiardo

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SECTION COMMENTS TO RESOLUTION 09-02-2015 TRUSTS AND ESTATES SECTION OF THE STATE BAR OF CALIFORNIA OPPOSE

TEXCOM opposes the Resolution because it may have unintended consequences and should be given further study before an attempt at implementation. In principle, TEXCOM supports the effort to undo the apparent holding of Lintz v. Lintz (2014) 222 Cal.App.4th 1346, which suggests that there should be a presumption of undue influence under Family Code section 721 when one spouse designates the other spouse as a beneficiary in a revocable trust. However, as worded, the proposed amendment does not directly address the problem to be remedied, and the language creates several issues to be considered.

First, the wording is potentially ambiguous. For example, some readers might believe that a distribution by a trustee or personal representative to a surviving spouse is not a “transfer between spouses” at all and hence the Resolution does not address the Lintz issue. Others might become confused and think that joint tenancies are no longer subject to a presumption of undue influence because the interest appears to pass at death.

Furthermore, the proposed amendment might have unintended consequences because it may engender confusion about whether spouses still have a confidential relationship for the purpose of the common-law test for shifting the burden of proof on undue influence (i.e., confidential relationship, active participation, and undue benefit). As worded, the amendment might create uncertainty in this regard.

In addition, the proposed amendment seems to have an unintended result with regard to contracts to make a testamentary disposition. A contract to make a will is an inter-vivos transaction between spouses and hence should fall under the existing presumption of Family Code section 721. Most contracts are revocable in the sense that a party can choose to breach them and face whatever consequences might follow. Under the proposed amendment, however, a transfer as the result of a contract to make a testamentary disposition would seem to be exempt from the presumption of undue influence under Family Code section 721, which did not seem to be an intention of the Resolution.

As a general proposition, it seems correct that estate planning matters (i.e., one spouse designating the other spouse as a beneficiary in an instrument that only directs the transfer of property to the surviving spouse as a result of the transferor spouse’s death) should not be governed by Family Code section 721. However, as set forth above, TEXCOM believes that the proposed amendment raises various issues that warrant further consideration and for that reason opposes the current Resolution.

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DISCLAIMER:

This position is only that of the TRUSTS & ESTATES SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the TRUSTS & ESTATES SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

COUNTERARGUMENTS TO RESOLUTION 09-02-2015 BAR ASSOCIATION OF NORTHERN SAN DIEGO COUNTY Since transaction is not defined, this proposed resolution has the potential to remove the fiduciary obligations that one spouse has to the other spouse. This resolution, in light of Lintz v. Lintz (January 14, 2014) --- Cal.Rptr.3d ----,, could be interpreted to remove the facts and circumstances considerations when determining undue influence. This proposed resolution could also open the door to more fraud on the elderly. In particular, this exacerbates the growing problem of elders who are influenced to marry their young caregivers, who then transfer all of the elder’s assets to themselves before death.

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RESOLUTION 09-03-2015 DIGEST Family Law: Creates an Exception to the Mediation Privilege Amends Evidence Code section 1120 to create an exception to the mediation privilege for communications between spouses that constitute a fraudulent breach of fiduciary duty. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Evidence Code section 1120 to create an exception to the mediation privilege for communications between spouses or Registered Domestic Partners that constitute a fraudulent breach of fiduciary duty. This resolution should be disapproved because to allow such an exception for family law cases would contravene well established public policy. Family Code section 721 imposes a fiduciary relationship on spouses and subjects them to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. Under Family Code section 1100, this fiduciary relationship continues until all assets are distributed. It is problematic for either spouse to assert or defend a breach of fiduciary duty where this breach occurred during mediation because any documents or communications prepared for and relied upon during the mediation, and upon which the agreement was based are not admissible. This problem of proof, however, is not unique to Family Law. Fiduciary relationships exist in many different areas of law - between a guardian and ward, trustee and beneficiary, principal and agent, or attorney and client, as well as between spouses. The conflict between confidentiality for mediation and the admissibility of evidence of a breach of fiduciary duty often means that the control of key evidence is in the hands of the party who engaged in misconduct yet fails to waive this confidentiality. Nevertheless, there is a strong and consistent legislative policy favoring mediation and the need to safeguard mediation confidentiality across all areas of law. A principal purpose of the mediation confidentiality statutes is to assure prospective participants that their interests will not be damaged, first, by attempting this alternative means of resolution, and then, once mediation is chosen, by making and communicating the candid disclosures and assessments that are most likely to produce a fair and reasonable mediation settlement. If courts begin to apply the good cause test to material otherwise subject to mediation confidentiality, parties will be less willing to mediate. Finally, there is no compelling reason for family law actions to be excluded from the confidentiality mandates of section 1120 more than any other area of law. A recent case, Lappe v. Superior Court (2014) 232 Cal.App.4th 774, review denied, Mar. 11, 2015, held that all declarations, preliminary or final, are not confidential even if they were prepared in contemplation of, or during mediation. The codification of this case may obviate the need for such a sweeping amendment as set forth in this resolution.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Evidence Code section 1120, to read as follows: §1120 (a) Evidence otherwise admissible or subject to discovery outside of a mediation or a 1 mediation consultation shall not be or become inadmissible or protected from disclosure solely 2 by reason of its introduction or use in a mediation or a mediation consultation. 3 (b) In family law actions, evidence of a breach of the fiduciary duty by a spouse, as set 4 forth in Sections 721 and 1100, that falls within the ambit of Section 3294 of the Civil Code shall 5 be admissible and subject to discovery. 6 (c) This chapter does not limit any of the following: 7 (1) The admissibility of an agreement to mediate a dispute. 8 (2) The effect of an agreement not to take a default or an agreement to extend the time 9 within which to act or refrain from acting in a pending civil action. 10 (3) Disclosure of the mere fact that a mediator has served, is serving, will serve, or was 11 contacted about serving as a mediator in a dispute. 12

(Proposed new language underlined; language to be deleted stricken)

PROPONENT: The Bar Association of San Francisco STATEMENT OF REASONS: The Problem: Family law litigants stand in a unique position in that they owe fiduciary duties to one another. While the mediation privilege promotes an important public policy, guarding against one spouse / RDP inducing the other to settle a dissolution case through the use of false, misleading, or fraudulent information is also an important public policy. This resolution seeks to balance these policies, by providing that when a breach of fiduciary duty that rises to a fraud (violation of Civil Code Section 3294) occurs in family law mediation, the spouse who was harmed by that can present evidence about the breach to the court. Existing law totally bars admission of any communications made during mediation, even if blatant fraud occurred, and with no exceptions regardless of the circumstances or prejudice caused. The Solution: This resolution adds an exception to the mediation privilege. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known.

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AUTHOR AND/OR PERMANENT CONTACT: Michelene Insalaco, 101 Spear Street, Suite 1640 San Francisco CA 94105, (415) 357-5050 MI@Sucherman-Insalaco.com RESPONSIBLE FLOOR DELEGATE: Michelene Insalaco

COUNTERARGUMENTS TO RESOLUTION 09-03-2015 BAR ASSOCIATION OF NORTHERN SAN DIEGO COUNTY The mediation privilege is quite broad for a reason – it encourages complete and candid communications in an attempt to resolve disputes among the parties. To create an exception based on “breach of fiduciary duty,” whether it is between spouses or any other persons who owe fiduciary duties to one another (attorney-client, trustee-beneficiary, etc.) guts this important purpose and would chill any candid communication in mediations in family law matters. ORANGE COUNTY BAR ASSOCIATION Proponents claim “family law litigants stand in a unique position in that they owe fiduciary duties to one another (emphasis added).” Fiduciary duties, however, flow from many relationships such as attorney/client, trustee/beneficiary, and principal/agent. Per Family Code section 721(b), in transactions between spouses, because of their confidential relationship, spouses are subject to “the general rules governing fiduciary relationships.” The phrase “general rules” makes clear there is nothing unique to family law. In truth, Section 721(b) delineates the spousal fiduciary relationship by way of sole reference to the rights and duties of business partners. While acknowledging the important public policy mediation confidentiality promotes, proponents argue that guarding against fraudulently inducing a spouse to enter into an unfair marital settlement agreement (“MSA”) is also an important public policy. In family law, to guard against unfairness in inter-spousal transactions, whether the product of fraud or even lesser bad-action, established public policy already provides a rebuttable presumption of undue influence where one spouse obtains an advantage. Generally, a target transaction would include an MSA. Courts repeatedly, however, have precluded the application of the presumption to mediated MSAs. The application of the proposed exception is not unlike that of the presumption, and judicial observations as to its preclusion are relevant. Courts have observed, “’[a]pplication of the presumption would turn the shield of mediation confidentiality into a sword by which any unequal agreement could be invalidated. We do not believe that the Legislature could have intended that result when it provided spousal fiduciary duties on the one hand and mediation confidentiality on the other.’ [Citation.]” In re Marriage of Woolsey (2013) 220 Cal.App.4th 881, 902. Competing public policies have been argued and weighed. That which supports mediation confidentiality has been determined as the greater, and there is no need or ability to “balance” the two.

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Proponents present the exception as a limited intrusion, only coming into play when the breach of spousal fiduciary duty rises to a fraud. Every practitioner knows fraud must be specifically plead, and the glaring problem here is in particularizing what was said. To reach such evidence, all mediation communications would have to be discoverable, and the exception would allow that based upon a simple allegation. Statements and documents of all participants and the mediator could be sifted through in search of proof. This proposal would effectively destroy any predicable confidentiality as is the purpose and intent of the current statutory design which protects participants and assures them, in advance, that with extremely limited exception, their communications will not become evidence or made public. This exception would not only jeopardize any mediated settlement, but the efficacy and desirability of family mediation, as well. Finally, due to recent legislation sponsored by CCBA, the California Law Revision Commission (“CLRC”) is currently conducting a comprehensive review of mediation confidentiality and relevant California statutes, including Evidence Code section 1120. Rather than pursue competing legislation, it would seem more efficacious for proponents to testify before CLRC as to their concerns. SAN DIEGO COUNTY BAR ASSOCIATION The SDCBA Delegation urges disapproval of Resolution 09-03-2015. This resolution should be disapproved because it defeats the confidentially of a mediation only because of the nature of the dispute. If mediations are to be compromised based on the factual nature of the dispute, the exceptions will eat the whole. Breaches of fiduciary duties are part and parcel of domestic relations. There is no inherent distinction between a domestic relations dispute mediation and any other. BY 10 MEMBERS (FAMILY LAW ATTORNEY-MEDIATORS) We are a group of twelve family law attorney-mediators from throughout California that is very concerned about Resolution 09-03-2015, and the limits to mediation confidentiality that it proposes. As members of the California State Bar, we write to formally submit the following Counterargument. Confidentiality has been a hallmark of mediation in California for the last two decades, and is one of the main reasons for its success as an alternative to litigation in the family law context. One of the central distinctions between mediation and litigation is that, in mediation – in large part due to the bright line confidentiality that characterizes the process – parties may speak freely without concern that their disclosures will later be made public or used against them in court. Although mediators across substantive areas value confidentiality, we have observed that it is especially vital in family law, where communications made in the course of mediation are frequently of an extremely personal nature. Whereas litigation is often characterized by positioning – which can distance the parties from one another and negatively impact the parties’ relationship and ability to co-parent effectively -- the bright line confidentiality characteristic of mediation encourages parties to speak freely about their interests, as well as the advantages and

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disadvantages of their legal positions, without fear that their frankness will harm them in court if they are unable to reach a mediated agreement. It is this freedom to speak honestly and openly that is the keystone to mediation’s success. If implemented, the Resolution’s proposed exception would swallow the rule, leaving vulnerable all communications in mediated cases, thereby robbing mediation of the very thing which has made it such a valuable process for family law disputants: predictable, bright line confidentiality. Although we appreciate the Resolution’s proponents’ concerns regarding the potential for breach of the spousal fiduciary duty, this issue is already specifically addressed by California’s financial disclosure laws, which are executed under penalty of perjury, and are not protected by mediation confidentiality. As attorneys, we understand that if and when empirically-based concerns arise that do warrant legislative solutions, it is important that such solutions be tailored as narrowly as possible to avoid any unintended negative consequences. In this case, the Resolution is not narrowly tailored; rather, the strokes with which it has been drawn are so broad that the Resolution stands to endanger the continued efficacy of family law mediation in California. If, after evaluating the empirical basis for this Resolution, you conclude that breaches of spousal fiduciary duty in mediation are of such genuine concern that further legislation is warranted, we urge you to consider a solution that would amend the financial disclosure laws as necessary, while keeping bright line mediation confidentiality intact. Respectfully submitted, 1. Suzan Barrie Aiken; SBN: 157697 2. Olivia Sinaiko; SBN: 289219 3. Hildy L. Fentin; SBN: 111518 4. Barney Connaughton; SBN: 163402 5. Frederick Glassman; SBN: 38570 6. Nancy J. Foster; SBN: 68533 7. Kristine Stewart; SBN: 271774 8. Shawn Weber; SBN: 216425 9. Bill Eddy; SBN: 163236 10. Catherine Conner; SBN: 104324 BY 10 BASF MEMBERS Submitted by the following members of the State Bar: Yaroslav Sochynsky, SB#54600, Oakland; Terry Norbury, SB#214395, San Francisco; Coreal Riday-White, SB#267732, San Francisco; Malcolm Sher, SB#72629, Danville; Nancy Powers, SB#87603, San Ramon; Paula M. Lawhon, SB#203368, San Francisco; Shelley Kennedy, SB#273123, San Francisco; Meredithe Kreis, SB#257625, San Francisco; Lennie Noordhoorn Gee, SB#182523, Encinitas; Thomas D. Ferreira, SB#131885, Carlsbad; Ariel B. Winger, SB#184179, Berkeley; Gayle M. Tamler, SB#106622, Beverly Hills; Amanda D. Singer, SB#293606, Del Mar; Eileen Barker, SB#124734, San Rafael; Unmani Sarasvati, SB#234836, San Francisco; David Fink, SB#130919, San Francisco; Eva Herzer, SB#98109, Albany; Chris Sawyer, SB#230764, San Francisco; Catherine Conner, SB#104324, Santa Rosa; Mary B. Culbert, SB#118635, Los Angeles; Karen Lipney, SB#120835, San Francisco

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Enactment of the legislation proposed by Resolution 09-03-2015 threatens to end effective family mediation. Family mediators would need to adopt a new opening statement along the following lines: "Warning! Anything you say may become evidence in court. If your spouse later claims you intentionally misrepresented anything important, your confidentiality protections evaporate." The legislation it proposes would open up wide discovery of mediation communications on an allegation. Predictable confidentiality was the intent of our current bright line rule, Evidence Code section 1119. Currently, mediation participants can be assured in advance that their own words will not become evidence later except in criminal proceedings. Some say this resolution's requirement that the evidence sought "falls within the ambit of Civil Code section 3294" provides a reasonable limit on which mediation communications will lose their current protection for discovery and admissibility. 3294 says it applies where "the defendant has been guilty of oppression, fraud, or malice" and says "'Fraud' means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury." For a discovery subpoena, this standard would appear to be satisfied with an allegation of fraud, and the assertion that the mediation communications sought in discovery are intended to be offered as evidence of intentional misrepresentation of a material fact with intent to deprive. Going further, if evidence of some mediation communications is obtained through subpoena of the mediator's files, or in a participant's deposition, then the other side might reasonably seek to discover and offer many other mediation communications to defend against the alleged fraud, or to put it in context. In family mediation, predictable confidentiality would be gone if the resolution's proposed legislation becomes law. We request the Committee on Resolutions recommend other ways to address the problem raised. For example: 1) In Lappe v Superior Court (2014), the Court of Appeal ruled that Evidence Code section 1120 already allows discovery and admission of the financial disclosures required under Family Law Code sections 2104 and 2105 even if they were prepared in the course of a mediation. CCBA could propose legislation requiring these financial disclosures in all marital dissolutions if needed to address In Re Marriage of Woolsey.

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2) CCBA already sponsored recent legislation to amend Evidence Code section 1120. This became AB 2025 (Gorell). In response, the Law Revision Commission is already currently studying amendment of section 1120. CCBA's legislative representative is already testifying about this regularly at the Commission. CCBA could request the Commission make the changes sought by resolution 09-03-2015. Nearly all legislation recommended by the Commission is enacted into law. We respectfully request the Committee on Resolutions either recommend disapproval or request the author amend the resolution as suggested above. BY 10 MEMBERS – LOS ANGELES WESTSIDE COLLABORATIVE DIVORCE PROFESSIONALS AND BETTER DIVORCE Dear Mr. Crabtree-Ireland and Ms. Kim: I am writing to you on behalf of the attorney members of the Los Angeles Westside Collaborative Divorce Professionals and a Better Divorce, two interdisciplinary organizations of professionals engaged in collaborative practice pursuant to California Family Code §2013. This letter is sent by the attorneys copied below, all of whom are members in good standing of the State Bar of California. The collaborative process incorporates California Evidence Code §1115-1128 for confidentiality in our cases. We join our mediation colleagues in vehemently opposing Resolution 09-03-2015 for the following reasons: 1. The stated purpose of the resolution is to protect family law litigants engaged in mediation or another collaborative process from fraud. However, this important priority is already addressed by Evidence Code §1120, which permits admission of all requisite financial declaration of disclosures required under California Family Code §2104 and 2105 prepared in mediation or otherwise.. The declarations of disclosures, executed under penalty of perjury and exchanged by each spouse prior to execution of the Marital Settlement Agreement. (See Lappe, supra.), deter failure to comply with fiduciary duties set forth in Family Code §721 and 1100, while preserving mediation confidentiality. 2. A long line of California Appellate and Supreme Court cases, recognizing that “confidentiality and neutrality are the life and breath of mediation” (In re Marriage of Kieturakis (2006) 138 Cal. App. 4th 56 quoting Anne Lober) have protected the assurance of confidentiality with no exceptions. See Foxgate Homeowners’ Assn v. Bramalea California, Inc. (2001) 26 Cal. 4th 1, Eisendrath v. Superior Court (2003) 109 Cal. App. 4th 351, In re Marriage of Kieturakis, supra, Rojas v. Superior Court (2007) 33 Cal. 4th 407, Wimsatt v. Superior Court (2007) 152 Cal. App. 4th 137, Cassell v. Superior Court (2011) 51 Cal. 4th 113, Marriage of Woolsey (2013) 220 Cal. App. 4th 881, and Lappe v. Superior Court (2014) Cal. App. 4th 774. The proposed Resolution runs afoul of these well reasoned decisions by creating an exception to previously sacrosanct mediation confidentiality.

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3. The same dilemma (fiduciary duties versus mediation communications) has been addressed by our Courts. When claims of undue influence (which would include false or misleading information or even fraudulent conduct) have been challenged, mediation confidentiality has prevailed. (See Kieturakis, supra, strict mediation confidentiality prevailed over claimed undue influence regarding spousal fiduciary duties.) 4. The Resolution’s proposed exception, while appearing limited, would in fact swallow the rule, and inevitably open all communications in mediated cases upon any allegation by an aggrieved party re: breach of fiduciary duties. By opening up the floodgates, parties would lose all the benefits of sancrosanct mediation confidentiality in order to protect against the very small minority who misuse these valuable mediation and settlement processes. We must balance the preservation of settlement processes which contribute to the settlement of an enormous number of high conflict matters against concerns of abuse which are already addressed by admissible Declarations of Disclosure. For these reasons, we respectfully request the Resolutions Committee to disapprove the subject Resolution. Yours Very Truly, Los Angeles Westside Collaborative Divorce Professionals Armine Baltazar, abaltazar@hammersbaltazar.com (SBN 193051) Jill Cohen jillcohenmediation@gmail.com (SBN 268934) Gerald Friedman, glfriedmanlaw@gmail.com (SBN 33401) Frederick Glassman fglassman@fglawcorp.com (SBN 38570) Debi Graboff, debigraboff@gmail.com, (SBN 110600) Fahi Hallin, ftakesh@harris-ginsberg.com (SBN 186665) Jeffery Jacobson jeff@jssfamilylaw.com (SBN 187329) Michelle Katz mickey@michelle-katz.com (SBN 80610) John Lazor, johnlazor@johnlazor.com (SBN 162172) Dvorah Markman markmand@familylawmediation.com (SBN 55876) Judith C. Nesburn jcnesburn@aol.com (SBN 126066) Ronald Rosenfeld, rar@beverlyhillslaw.com (SBN 36148) Jena Stara, jls@starafamilylaw.com (SBN 186983) Heidi S. Tuffias, htuffias@heidituffias.com (SBN 151133) A Better Divorce Kim Davidson kim@kimberlydavidson.com SBN 188558 Michael Eller ellerlaw2@aol.com (SBN 140953) Jane Euler jane@lauzoneuler.com (SBN 176519) Deborah Ewing ewingesq@sobaylaw.com (SBN 107568) James Hallett jmhallettlaw@earthlink.net (SBN 53686)

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Leslie Hart lesliehartlaw@aol.com (SBN 115460) Kenneth Harvey kharvey@jhkfamillaw.com (SBN 57245) Wendy Jones wjones@dadlaw.com (SBN 196892) Erin McGaughey erin@mcgs-law.com (SBN 227744) Tara McGuinness tara@taramcguinenness.com (SBN 101839) Julie A. Milligan milligan@silmillaw.com ( SBN 124419) Christopher Moore mail@mbsllp.com (SBN 36949) Colin O’Connor colin@redondofamilylaw.com (SBN 155450) Joseph Spirito Jr joe@mcgs-law.com (SBN 106360) B. Elaine Thompson ethompsonlaw@gmail.com (SBN 75136) Kerry Wallis kwallis@graylawcorp.com (SBN 205650) David K. Yamamoto david@dkylaw.com (SBN 12313) ///

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Typewritten Text

1

COUNTERARGUMENT TO RESOLUTION 09-03-2015

SUBMITTED BY MEMBERS OF THE CALIFORNIA STATE BAR

ON BEHALF OF LOS ANGELES COLLABORATIVE FAMILY LAW ASSOCIATION

WWW.LACFLA.ORG

May 18, 2015

Sent Via E-mail

Duncan Crabtree-Ireland, Conference Chair eMail: chair@calconference.org

Jennifer Kim, Committee Chair eMail: resolutions@calconference.org

Bruce D. Sires, BHBA CCBA Co-Chair eMail: bds@vrmlaw.com

Jonathan A. Stein, BHBA CCBA Co-Chair eMail: jstein@jsteinlaw.com

Robin Bernstein-Lev, LACBA CCBA Chair eMail: rbernstein-lev@pubdef.lacounty.gov

Roger Franklin, SFVBA CCBA Chair eMail: rogerfranklin@prodigy.net

I am writing to you on behalf of the attorney members of the Los Angeles Collaborative

Family Law Association (LACFLA). LACFLA is a countywide organization (IRC 501(c)3)

made up of over 50 lawyers, together with another 50 mental health and financial professionals

engaged in collaborative practice as a consensual dispute resolution process for family law

disputants pursuant to California Family Code §2013. In addition, local Superior Court Rule in

Los Angeles (5.26) authorizes the collaborative law process throughout the County of Los

Angeles. The collaborative process incorporates California Evidence Code §1115-1128 for

confidentiality in our cases. The LACFLA Board of Directors along with its past Presidents join

our fellow mediation colleagues in opposing Resolution 09-03-2015 for the following reasons:

1. The stated purpose of the resolution is to protect family law litigants engaged in

mediation or in the collaborative process from fraud. Yet this is already addressed by Evidence

Code §1120, which permits admission of all requisite financial declaration of disclosures

required under California Family Code §2104 and 2105 prepared in mediation or otherwise. The

“ fix‘tfiu 376‘”;

Southern California Mediation Association

May 18, 2015

Duncan Crabtree-Ireland

Jennifer Kim

Conference of California Bar Associations

340 S. Lemon St., #1282

Walnut, CA 91789

re: Resolution 09-03-2015 to the Conference of California Bar Associations

Dear Conference Chairs:

The Southern California Mediation Association, the leading organization in Southern

California supporting the practice of mediation, opposes amending California Evidence Code

1 120 to allow discovery and the admissibility of evidence, in family law actions, of breaches of

fiduciary duty amounting to oppression, fraud or malice.

While family law mediators share the goal of preventing abuse in the resolution of family

law actions, existing remedies provide adequate protection. Creating a new exception to

mediation confidentiality would not only threaten the continued viability of mediation

proceedings that have proven so useful to resolving many thousands of family law disputes, but

would also create new opportunities for costly and destructive litigation.

The courts in California have repeatedly upheld the strong protections for mediation

confidentiality contained in Evidence Code §1119. See, e.g., Rojas v. Superior Courtfor the

State ofCalifornia, 33 Cal. 4th 407 (2004); Simmons v. Ghadert', 44 Cal .4th 570 (Cal. 2008);

Caste] vs. Superior Court, 51 Cal.4th 113 (2011). The courts recognize that confidentiality is

fundamental to mediation, and that carving out exceptions to confidentiality would undermine

the practice and provide opportunities for parties to create new controversies, precisely the result

that parties seek to avoid when they choose mediation.

No compelling need has been shown to carve out the proposed exception for family law

mediation. The disclosure obligations of the Family Law Code § 2104, et seq. already provide

strong protections from the conduct described in the proposed resolution. If a party has been

guilty of this kind of abusive conduct in a divorce mediation, their fraud will generally be

evident in their financial disclosures (or lack thereof). Existing remedies for such fraudulent

conduct include setting aside the judgment, and monetary sanctions against attorneys and parties.

Moreover, these financial disclosures are already discoverable and admissible under

existing law even if they were prepared in the course of mediation proceedings. The recent case

Lappe vs. Superior Court, 232 Cal.App.4th 774, 784 (2d Dist. 2014) expressly held that

“Evidence Code section 1 119 does not apply to disclosures made pursuant to and for the purpose

of complying with the Family Code’s statutory mandate.”

In addition to these protections, family law mediators and/or attorneys representing

clients in mediation are on the frontlines to defend against this sort of conduct. Mediators and

legal professionals are trained to be able to see the “red flags” of fraud and take steps to end the

mediation or otherwise expose fraudulent conduct before an unfair and fraudulent agreement is

completed.

SCMA therefore supports the current statutory scheme and strongly opposes the

limitations on family mediators and attorneys representing clients in mediation contained in

Resolution 09-03—2015.

We respectfully request the Committee on Resolutions recommend disapproval.

Very truly yours,

/

7

Joseph C. Markowr z, immediate past prestdent

Terri Breer

Wendy Forrester

09-04-2015 Page 1 of 4

RESOLUTION 09-04-2015 DIGEST Registered Domestic Partnerships: Conversion into Marriage Adds Family Code section 297.6 to allow registered domestic partners (RDPs) to convert their partnership to a marriage, with the effective date of marriage being the date of the RDP registration. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution adds Family Code section 297.6 to allow registered domestic partners (RDPs) to convert a partnership to a marriage, with the effective date of marriage being the date of the RDP registration. This resolution should be approved in principle because various federal benefits are contingent on the date of marriage, and because the option will properly compensate couples whose constitutional rights were violated due to past restrictions on marriage. Under the recent United States Supreme Court case, Obergefell v. Hodges (2015) 576 U.S. __, determining that same-sex couples have a constitutional right to marry, presumably the federal government will recognize these marriages even if they date back to a point before the decision. Under Family Code section 297.5, subdivision (a), RDPs have the same rights as spouses under California law. This protects rights in community property located in California, but not with respect to federal time-dependent benefits such as spousal social security (benefits arise only after 10 years of marriage), and spousal rights under ERISA retirement plans. Thus, even if RDPs marry, they cannot fully capture the benefits to which they would have been entitled had they been able to get marries on the date they entered into their RDP. The proposed legislation will solve this problem by, optionally at the request of the couple, making the effective date of marriage the date of the registration of the earlier RDP. (It might also be helpful to give formerly RDPs who have since married the option to also convert their previous RPD.) TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to add Family Code section 297.6 to read as follows: § 297.6 Registered domestic partners may apply to have their partnership converted into a 1 marriage. For purposes of determining the legal rights and responsibilities involving individuals 2 who had previously had a registered domestic partnership and are deemed married under the 3

09-04-2015 Page 2 of 4

provisions of this section, the date of the original registered domestic partnership is the legal date 4 of the marriage. 5

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bay Area Lawyers for Individual Freedom STATEMENT OF REASONS The Problem: Prior to June 28, 2013, same-sex couples were prohibited from marrying in California (other than during the four-plus month period before Proposition 8 was passed in 2008). While same-sex couples have been able to become registered domestic partners in California since 1999, registered domestic partnerships (RDPs) are not considered marriages for the purposes of Federal law. Various benefits are contingent on a date of marriage. In one example, an ERISA-governed retirement plan may incorporate a requirement that a couple be married for a period (e.g., at least a year) prior to the annuity starting date for a spouse to be entitled to the annuity. Further, denied the ability to legally marry, many same-sex couples that entered an RDP viewed their RDP as a marriage. However, under existing law, they must apply for a marriage license and go through the ceremonial requirements of a marriage. While some same-sex couples in a RDP may want to do so, others view this as unnecessary and duplicative. The Solution: This resolution would allow registered domestic partners to convert their partnership to a marriage, with the effective date of marriage being the date of the domestic partnership registration. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Denise Bergin, Weaver Austin Villeneuve & Sampson LLP, 555 12th St., Ste 1700, Oakland, CA 94607; 510-267-4142; dbergin@wavsip.com RESPONSIBLE FLOOR DELEGATE: Denise Bergin

09-04-2015 Page 3 of 4

SECTION COMMENTS TO RESOLUTION 09-04-2015 FAMILY LAW SECTION OF THE STATE BAR OF CALIFORNIA Disapprove

Rationale

The Executive Committee of the Family Law Section of the State Bar of California (FLEXCOM) disapproves this Resolution for a number of reasons. These are (in no particular order):

:

1. The Resolution does not explain/address how the Registered Domestic Partnership will be converted to a marriage. Some mechanism/form will be needed to ensure a) both parties desire this, and b) there is a valid record of this. 2. The Resolution does not take into consideration the potential conflict with Federal law, which did not recognize same-sex marriages until the June 2013 Supreme Court decision. 3. The Resolution does not appear to take into consideration that same sex marriage was illegal prior to June 2008, yet Registered Domestic Partnerships have been legal in California since 2000. 4. The Resolution also does not appear to take into consideration the Registered Domestic Partnerships entered into in the time period between the Proposition 8 vote in November of 2008 and the June 2013 Supreme Court decision. 5. The Resolution fails to address whether or not non-California Registered Domestic Partnerships (i.e. RDPs or civil unions entered into in other states) should be eligible for such a conversion. 6. The Resolution does not address the lack of the required solemnization process for a valid marriage. Because so many concerns exist that have not been addressed at all/adequately, FLEXCOM disapproves. The proponents of this Resolution may want to consider reworking this concept to address these and possibly other issues.

This position is only that of the FAMILY LAW SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California.

Disclaimer:

09-04-2015 Page 4 of 4

Membership in the FAMILY LAW SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

COUNTERARGUMENTS TO RESOLUTION 09-04-2015 SACRAMENTO COUNTY BAR ASSOCIATION DISAPPROVE: The resolution’s intent is appreciated, but the resolution, as written, does not address the following conditions:

(1) It does not explain, procedurally, how the Registered Domestic Partnership (RDP) will be converted to a marriage. A mechanism (form) will be needed to ensure both parties are willingly consenting to the conversion. It should conform, at a minimum, to the CA RDP registration requirements.

(2) It does not take into consideration the potential conflict with Federal law, which did not recognize same sex marriages until the June 2012 Supreme Court Decision.

(3) It does not take into consideration that same sex marriage was illegal prior to June 2008, yet RDP’s were legal since 2000. Converting an RDP entered into prior to June 2008 may not be appropriate given the illegality of pre-June 2008 same sex marriage. It also does not take into account RDP’s that were entered into the time period of the Prop 8 vote in 2008, and the June 2012 Supreme Court decision.

(4) It does not take into consideration whether or not non-CA RDP’s (i.e. RDP’s or civil unions entered into in other states) should be eligible for the conversion.

09-05-2015 Page 1 of 4

RESOLUTION 09-05-2015

DIGEST Family Law: Preliminary Declarations of Disclosure of Schedule of Assets and Debts Amends Family Code section 2104 to require that a Preliminary Declaration of Disclosure of Schedules of Assets and Debts must have all categories completed in the California Judicial Council form. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Family Code section 2104 to require that a Preliminary Declaration of Disclosure of Schedules of Assets and Debts have all categories completed in the California Judicial Council form. This resolution should be approved in principle because it will more readily clarify whether or not a party to a divorce or separation has disclosable assets and debts and provide a methodical checklist for the disclosing party. Family Code section 2104 requires parties to a dissolution, legal separation, or nullity action to file a “Preliminary Declaration of Disclosure,” (California Judicial Council Form FL-140), which identifies “with sufficient particularity, that a person of reasonable and ordinary intelligence can ascertain” a person’s assets, liabilities, percentage of ownership or obligation for each liability, a completed income and expense declaration, and all tax returns within the two years prior to the date the party served the declaration. (Fam. Code, § 2104.) The declarant is required to sign the forms under penalty of perjury that the information provided is true and correct. These forms are not filed with the trial court, but the party filing the declaration must file the proof of service of the Preliminary Declaration of Disclosure with the court. The Schedules of Assets and Debts, California Judicial Council Form FL-142, requires disclosures of assets and debts in the following categories: (1) real estate; (2) household furniture, furnishings, appliances; (3) jewelry, antiques, art, coin collections, etc.; (4) vehicles, boats, trailers; (5) savings accounts; (6) checking accounts; (7) credit union, other deposit accounts; (8) cash; (9) tax refund; (10) life insurance with cash surrender or loan value; (11) stocks, bonds, secured notes, mutual funds; (12) retirement and pensions; (13) profit-sharing, annuities, IRAs, deferred compensation; (14) accounts receivable and unsecured notes; (15) partnerships and other business interests; (16) other assets. (Cal. Jud.Council, Form FL-142). The form requests the party to identify whether the item is separate property, the date acquired, the current gross fair market value, and the amount of money owed or encumbrance. (Id.). If a category is left blank, it is unclear whether the declarant mistakenly omitted the category, does not have assets or liabilities corresponding to the category, or is intentionally omitting the category. A complete and accurate PDD is also important because the final disclosures may be waived. Requiring the declarant to specifically identify whether he or she has assets and/or liabilities corresponding to each category will eliminate the problem.

09-05-2015 Page 2 of 4

TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Family Code section 2104 to read as follows: §2104 (a) Except by court order for good cause, as provided in Section 2107, in the time period 1 set forth in subdivision (f), each party shall serve on the other party a preliminary declaration of 2 disclosure, executed under penalty of perjury on a form prescribed by the Judicial Council. The 3 commission of perjury on the preliminary declaration of disclosure may be grounds for setting 4 aside the judgment, or any part or parts thereof, pursuant to Chapter 10 (commencing with 5 Section 2120), in addition to any and all other remedies, civil or criminal, that otherwise are 6 available under law for the commission of perjury. The preliminary declaration of disclosure 7 shall include all tax returns filed by the declarant within the two years prior to the date that the 8 party served the declaration. 9

(b) The preliminary declaration of disclosure shall not be filed with the court, except on 10 court order. However, the parties shall file proof of service of the preliminary declaration of 11 disclosure with the court. 12

(c) The preliminary declaration of disclosure shall set forth with sufficient particularity, 13 that a person of reasonable and ordinary intelligence can ascertain, all of the following: 14

(d) The identity of all assets in which the declarant has or may have an interest and all 15 liabilities for which the declarant is or may be liable, regardless of the characterization of the 16 asset or liability as community, quasi-community, or separate. 17

(e) The declarant's percentage of ownership in each asset and percentage of obligation for 18 each liability where property is not solely owned by one or both of the parties. The preliminary 19 declaration may also set forth the declarant's characterization of each asset or liability. 20

(d) A declarant may amend his or her preliminary declaration of disclosure without leave 21 of the court. Proof of service of any amendment shall be filed with the court. 22

(e) Along with the preliminary declaration of disclosure, each party shall provide the 23 other party with a completed income and expense declaration unless an income and expense 24 declaration has already been provided and is current and valid. 25

(f) The petitioner shall serve the other party with the preliminary declaration of disclosure 26 either concurrently with the petition for dissolution, or within 60 days of filing the petition. The 27 respondent shall serve the other party with the preliminary declaration of disclosure either 28 concurrently with the response to the petition, or within 60 days of filing the response. The time 29 periods specified in this subdivision may be extended by written agreement of the parties or by 30 court order. 31

(g) A preliminary declaration of disclosure shall not be deemed to be properly completed 32 unless each and every box on the Scheduled of Assets and Debts is filled in. 33

(Proposed new language underlined; language to be deleted stricken) PROPONENT: The Los Angeles County Bar Association

09-05-2015 Page 3 of 4

STATEMENT OF REASONS The Problem: Current law makes mandatory in all Divorce and Legal Separation proceedings, the exchange of Preliminary Declarations of Disclosures. (“PDDs”). Among the required documents that must be exchanged within such PDDs are forms entitled “Schedule of Assets and Debts.” This form has various categories for each type of property that a person can own. By way of example, categories include but are not limited to “real property” “checking accounts” “retirement accounts,” etc. The purpose of the form is to ensure that when getting divorced, a spouse discloses to the other spouse all of the assets that he/she owns. Other information, such as the date the asset was acquired, the value of the asset and the spouse’s alleged characterization of the asset (community or separate or mixed) must also be provided. Despite the various categories which are pre-printed on the form, many practitioners tend to leave certain categories blank. This is either because they think that if there is no real property, for example, that the category does not need to have the word “none” or the figure “0” inserted. However, some practitioners and/or self-represented spouses may leave a blank in the form for the specific purpose of avoiding having to disclose a hidden asset that they do not want the other spouse to become aware of. As a result of this latter possibility, practitioners who receive such Schedules with blanks on them, must of necessity contact the attorney (or self-represented Party) who prepared the Schedule and request a new one with the form to be fully completed. This becomes a burdensome task which should not have to be undertaken. And, on occasion, certain practitioners( or self-represented Parties) actually refuse to remedy this defect and refuse to provide revised fully completed forms. The Solution: The proposed revision to the current statute would address this problem by specifically providing that in order to be in compliance with the law which requires that Preliminary Declarations of Disclosure be exchanged, that each and every form must be fully completed and filled out in all particulars. This will eliminate the need in most cases to protracted correspondence or even court hearings on this issue. IMPACT STATEMENT The proposed Resolution does not affect any other law, statute or Rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Avery M. Cooper, Esq., Cooper-Gordon LLP, 2530 Wilshire Blvd., Third Floor, Santa Monica, CA. 90403, 310-829-9918, averyc@cooper-gordon.com RESPONSIBLE FLOOR DELEGATE: Avery M. Cooper, Esq.

09-05-2015 Page 4 of 4

SECTION COMMENTS TO RESOLUTION 09-05-2015 FAMILY LAW SECTION OF THE STATE BAR OF CALIFORNIA Disapprove

Rationale

The Executive Committee of the Family Law Section of the State Bar of California (FLEXCOM) feels this Resolution would only increase litigation a) if the boxes were not checked, and b) more importantly, for requests to set aside judgments based on that failure. Remedies already exist to address a party’s failure to list an asset or debt on the disclosure so this is unnecessary.

:

Disclaimer:

This position is only that of the FAMILY LAW SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the FAMILY LAW SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

09-06-2015 Page 1 of 5

RESOLUTION 09-06-2015 DIGEST Juvenile Law: Allow Standing to Biological Fathers to Participate in Juvenile Dependency Cases Amends California Welfare and Institutions Code sections 290.1, 290.2, 302, 316.2, 361.2, and 361.5 to allow standing to biological fathers in their child’s juvenile dependency cases. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Welfare and Institutions Code sections 290.1, 290.2, 302, 316.2, 361.2, and 361.5 to allow standing to biological fathers in their child’s juvenile dependency cases. This resolution should be approved in principle as it ensures a parent’s fundamental due process right to notice and the opportunity to be heard in a dependency matter. In In re Wilford J. (2005) 131 Cal.App.4th 742, the court found that, “A parent's fundamental due process right to adequate notice and the opportunity to be heard in dependency matters involving potential deprivation of the parental interest has little, if any, value unless the parent is advised of the nature of the hearing giving rise to that opportunity, including what will be decided therein; only with adequate advisement can one choose to appear or not, to prepare or not, and to defend or not.” Currently, the law does not recognize what has become more common in the age of surrogacy – the rights of the biological father who may not be a stranger to the child but may nevertheless be denied notice. It should be noted that this amendment does not amend Welfare and Institutions Code section 291, which establishes who shall be given notice of the disposition of a hearing, so while a biological father may have standing, he would not receive notice of the disposition of the initial jurisdictional hearing. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Welfare and Institutions Code sections 290.1, 290.2, 302, 316.2, 361.2, and 361.5 to read as follows: §290.1 Duty to File Petition and Give Notice (a) Notice shall be given to the following persons 1 whose whereabouts are known or become known prior to the initial petition hearing: (1)The 2 mother or mothers, presumed, biological and alleged. (2) The father or fathers, presumed, 3 biological, and alleged. 4 5 §290.2 6

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Issuance and Service of Notice.(a) Notice shall be given to the following persons whose 7 address is known or becomes known prior to the initial petition hearing: (1) The mother or 8 mothers, presumed, biological and alleged. (2) The father or fathers, presumed, biological, and 9 alleged. 10 11 §302 12 Assumption of jurisdiction regardless of custody by one or both all parents; notice to 13 parents; report of social worker; custodial rights. (b) Unless parental rights have been terminated, 14 both all parents shall be notified of all proceedings involving the child. The court must make 15 findings on the record that a parentage inquiry and all required notice was performed pursuant to 16 section 316.2. 17 (c) In any case where the social worker.... 18 19 §316.2: Presumed or alleged fathers parents; inquiry by court; notice; termination of rights; 20 jurisdiction 21 (a) At the detention hearing, or as soon thereafter as is practicable, the court shall inquire 22 of the mother and any other appropriate person as to the identity and address of all presumed, 23 biological, or alleged fathers parents. The presence at the hearing of a man claiming to be the 24 father shall not relieve the court of its duty of inquiry. The inquiry shall include at least all of the 25 following, as the court deems appropriate: 26 (1) Whether a judgment of paternity already exists. (2) Whether the mother was married 27 or believed she was married at the time of conception of the child or at any time thereafter. (3) 28 Whether the mother was cohabiting with a man another parent of the child at the time of 29 conception or birth of the child. (4) Whether the mother has received support payments or 30 promises of support with respect to the child or in connection with her pregnancy. (5) Whether 31 any man parent has formally or informally acknowledged or declared his possible paternity 32 parentage of the child, including by signing a voluntary declaration of paternity. (6) Whether 33 paternity tests have been administered and the results, if any. (7) Whether any parenting adult 34 otherwise qualifies as a presumed father parent pursuant to Section 7611, or any other provision, 35 of the Family Code. (8) The name of any parenting adult identified through this inquiry. (9) The 36 contact information, including phone number, email address and physical address of any 37 parenting adult identified through this inquiry.(10) If information pursuant to (a)(9) is not 38 available, the name and contact information for any grandparent or other family friend or relative 39 that might have access to this information. 40 (b) If, after the court inquiry, one or more men adults are identified as an alleged father 41 parent, each alleged father parent shall be provided notice at his or her last and usual place of 42 abode or through information gathered pursuant to (a)(9) and (10) by certified mail return receipt 43 requested alleging that he or she is or could be the father parent of the child. The notice shall 44 state that the child is the subject of proceedings under Section 300 and that the proceedings could 45 result in the termination of parental rights and adoption of the child. Judicial Council form 46 Paternity--‐Waiver of Rights (JV--‐505) shall be included with the notice. 47 Nothing in this section shall preclude a court from terminating a father’s parent’s parental 48 rights even if an action has been filed under Section 7630 or 7631 of the Family Code.(c)The 49 court may determine that the failure of an alleged father parent to return the certified mail receipt 50 is not good cause to continue a hearing pursuant to Section 355, 358, 360, 366.21, or 366.22. 51

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(d) If an alleged father parent appears in the dependency action and files an action under Section 52 7630 or 7631 of the Family Code, the court shall determine if he is the father a presumed or 53 biological parent. 54 55 §361.2 56 (a) When a court orders removal of a child pursuant to Section 361, the court shall first 57 determine whether there is a presumed or biological parent of the child, with whom the child was 58 not residing at the time that the events or conditions arose that brought the child within the 59 provisions of Section 300, who desires to assume custody of the child. If that parent requests 60 custody, the court shall place the child with the parent unless it finds that placement with that 61 parent would be detrimental to the safety, protection or physical or emotional well--‐being of the 62 child.... 63 (b)(3) Order that the parent assume custody subject to the supervision of the juvenile 64 court. In that case the court may order that reunification services be provided to the parent or 65 guardian from whom the child is being removed, or the court may order that services be provided 66 solely to the parent who is assuming physical custody in order to allow that that parent to retain 67 later custody without court supervision, or that services be provided to both all parents, in which 68 case the court shall determine, at review hearings held pursuant to Section 366, which parent, if 69 either any shall have custody of the child. 70 (c) The court shall make a finding either in writing or on the record of the basis for its 71 determination under subdivisions (a) and (b). The court shall not make findings pursuant to 72 Section 361 until noticing of all alleged parents has been completed and parentage 73 determinations have been resolved, pursuant to section 316.2. 74 75 §361.5 76 (a) Except as provided in subdivision (b), or when the parent has voluntarily relinquished 77 the child and the relinquishment has been filed with the State Department of Social Services, or 78 upon the establishment of an order of guardianship pursuant to Section 360, or when a court 79 adjudicates a petition under Section 329 to modify the court’s jurisdiction from delinquency 80 jurisdiction to dependency jurisdiction pursuant to subparagraph (A) of paragraph (2) of 81 subdivision (b) of Section 607.2 and the parents or guardian of the ward have had reunification 82 services terminated under the delinquency jurisdiction, whenever a child is removed from a 83 parent’s or guardian’s custody, the juvenile court shall order the social worker to provide child 84 welfare services to the child and the child’s mother and, statutorily presumed parent, and 85 biological father. If the child has been removed from a legal guardian’s custody, then the court 86 shall order reunification services to the guardians. Upon a finding and declaration of paternity by 87 the juvenile court or proof of a prior declaration of paternity by any court of competent 88 jurisdiction, the juvenile court may order services for the child and the biological father, if the 89 court determines that the services will benefit the child. 90 (remainder of section remains unchanged) 91

(Proposed new language underlined; language to be deleted stricken) PROPONENT: The Bar Association of San Francisco

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STATEMENT OF REASONS The Problem: Existing law recognizes many types of fathers: alleged fathers who merely have the right to elevate their paternity status to that of either biological father or presumed father. Only presumed fathers have the right to be evaluated for custody and visitation. Only presumed fathers have the right to receive reunification services to address the issues that led to the child be removed from parental custody in order to prove to the court that they can provide a safe and appropriate home for the child. Existing law was recently amended to allow for three parents in appropriate cases. This change to Family Code Section 7612(c) allows the dependency court to keep both a psychological father and a biological father involved in a child’s life. The courts have split over many issues regarding how to achieve presumed father status. Previously, a biological father could obtain presumed father status by signing a voluntary declaration of paternity declaring to be the biological father, which served as equivalent to a judgement of paternity. Now, case law has questioned whether this is still good law. Moreover, recent case law has declared that a judgement of paternity for the purposes of Child Support collections should not be considered a judgement of paternity for dependency purposes. Courts need a unified and simple standard to apply so that children can have a fair and unbiased determination of parentage. The Solution: Biological fathers should have the same rights as presumed fathers to request a determination by the court for custody as a non-custodial parent. Biological fathers should have access to reunification services. Biological mothers who are accused of abuse and neglect are given reunification services as a matter of law. This resolution grants these same rights to biological fathers. IMPACT STATEMENT This resolution does not impact any other law, statute, or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Jill McInerney, 459 Fulton Street, Suite 208, San Francisco, CA 94102; (415) 310-6048, jill@jillmcinerneylaw.com RESPONSIBLE FLOOR DELEGATE: Jill McInerney

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SECTION COMMENTS TO RESOLUTION 09-06-2015 FAMILY LAW SECTION OF THE STATE BAR OF CALIFORNIA Disapprove

The Executive Committee of the Family Law Section of the State Bar of California (FLEXCOM) disapproves this Resolution. Existing law already gives fathers standing for all these services. Current law provides that presumed parents have entitlement based on their proven/historical involvement with the child. Biological fathers who do not also qualify as “presumed” have to prove reunification would benefit the child often/usually because of their lack of involvement. We feel the different treatment has a well-reasoned basis.

Rationale:

In addition, the proposed amendment to Welfare and Institutions Code sections 361.2(c) could lead to delays and continuances that are detrimental to the child’s overall needs. We also note the concern that this Resolution, in its attempt to use gender-neutral language, goes too far. There is no such thing as an “alleged” biological mother and there should be no implication that there is any such thing.

Disclaimer: This position is only that of the FAMILY LAW SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the FAMILY LAW SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

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RESOLUTION 09-07-2015 DIGEST Fiduciary Duties: Waiver of Preliminary Declaration of Disclosure Amends Family Code section 2104 to make an exchange of preliminary declarations of disclosure required only upon the request of a party. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Family Code section 2104 to make an exchange of preliminary declarations of disclosure required only upon the request of a party. This resolution should be disapproved because it would undermine the goal of ensuring that both parties to a dissolution have full information about the community estate and the other party’s income. Over the past several decades California family law has evolved to strengthen spouses’ fiduciary duties to each other. These duties require full disclosure of income, assets, and debts. It is the clear public policy of this State to ensure that when spouses part, the community property is equally divided, and fair support awards are issued. (Fam. Code, § 2100.) This proposal strips the teeth from the fiduciary duties, because the stronger spouse would often be able to convince the weaker spouse to waive the disclosures. The waiver would by definition be uninformed and thereby not voluntarily, because it could be made before any financial information had been exchanged. This resolution conflicts also conflicts with Family Code section 2105, which allows the parties to waive the requirement to complete a final disclosure because the waiver requires service of the preliminary declarations of disclosure (“PDDs”). (Fam. Code, § 2105, subd. (d)(1).) While it may take the parties time to assemble their PDDs, overall this exchange and the spousal duty of disclosure saves the time and attorney’s fees that would be involved in formal discovery. Family Code section 2330.5 already provides that PDDs are not required in cases where the petition makes no demand for money, property, costs, or attorney's fees and the judgment is entered by default. Pending Assembly Bill no. 1519 (Reg. Sess. 2015-2016), the Assembly Judiciary Committee omnibus bill for 2015)), amends Family Code section 2104, subdivision (f), to clarify that the deadline to serve a PDD applies to legal separation actions. Assembly Bill no. 340 (Reg. Sess. 2015-2016, chaptered July 2, 2015) amended Family Code section 2103 et seq., to provide that service of the PDD is not required in cases where service was by publication and the respondent has defaulted.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Family Code section 2104 to read as follows: §2104 (a) Except by court order for good cause, as provided in Section 2107, in the time 1 period set forth in subdivision (f), upon request, each party shall serve on the other party a 2 preliminary declaration of disclosure, executed under penalty of perjury on a form prescribed 3 by the Judicial Council. The commission of perjury on the preliminary declaration of 4 disclosure may be grounds for setting aside the judgment, or any part or parts thereof, pursuant 5 to Chapter 10 (commencing with Section 2120), in addition to any and all other remedies, 6 civil or criminal, that otherwise are available under law for the commission of perjury. The 7 preliminary declaration of disclosure shall include all tax returns filed by the declarant within 8 the two years prior to the date that the party served the declaration. 9 (b) The preliminary declaration of disclosure shall not be filed with the court, except 10 on court order. However, the parties shall file proof of service of the preliminary declaration 11 of disclosure with the court. 12 (c) The preliminary declaration of disclosure shall set forth with sufficient particularity, 13 that a person of reasonable and ordinary intelligence can ascertain, all of the following: 14 (1) The identity of all assets in which the declarant has or may have an interest and all 15 liabilities for which the declarant is or may be liable, regardless of the characterization of the 16 asset or liability as community, quasi-community, or separate. 17 (2) The declarant's percentage of ownership in each asset and percentage of obligation 18 for each liability where property is not solely owned by one or both of the parties. The 19 preliminary declaration may also set forth the declarant's characterization of each asset or 20 liability. 21 (d) A declarant may amend his or her preliminary declaration of disclosure without 22 leave of the court. Proof of service of any amendment shall be filed with the court. 23 (e) Along with the preliminary declaration of disclosure, each party shall provide the 24 other party with a completed income and expense declaration unless an income and expense 25 declaration has already been provided and is current and valid. 26 (f) The petitioner shall serve the other party with the preliminary declaration of 27 disclosure ei ther concurrently with the peti t ion for dissolution, or within 60 days of 28 being requested filing the petition. The respondent shall serve the other party with the 29 preliminary declaration of disclosure either concurrently with the response to the petition, or 30 within 60 days of being requested f i l i n g t h e r e s p o n s e . The time periods specified in this 31 subdivision may be extended by written agreement of the parties or by court order. 32

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County

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STATEMENT OF REASONS The Problem: Currently parties are required to exchange preliminary declarations of disclosure. Many parties are self-represented and do not timely exchange these documents. Often cases are delayed and continued as Judgment cannot be entered without this exchange. Many parties are willing to waive preliminary declarations of disclosure or they are confident with their settlement, have little to disclose and/or are not good with paperwork. This further burdens an already burdened Facilitator’s office. The Solution: This resolution makes an exchange of preliminary declarations of disclosure optional. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Jeffrey Lacy, 900 Pier View Way, Oceanside, CA, 92054; telephone (760) 722-1234, email jeffrey.lacy@glkohlaw.com RESPONSIBLE FLOOR DELEGATE: Jeffrey Lacy, Esq.

SECTION COMMENTS TO RESOLUTION 09-07-2015 FAMILY LAW SECTION OF THE STATE BAR OF CALIFORNIA Disapprove Rationale: The Executive Committee of the Family Law Section of the State Bar of California (FLEXCOM) disapproves this Resolution. There are already remedies available and procedures to deal with the recalcitrant opposing party who will not serve his/her PDD. Undermining the whole requirement to deal with these cases is too overbroad a step. Disclaimer: This position is only that of the FAMILY LAW SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California.

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Membership in the FAMILY LAW SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

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RESOLUTION 09-08-2015 DIGEST

Amends Family Code section 3027 to require family courts to notify the local child welfare agency regarding findings of child abuse/neglect, and amends Penal Code section 11169 to require the agency to report the case to the Department of Justice (DOJ).

Family Law: Requires Family Law Findings of Child Abuse/Neglect to be Reported to the DOJ

RESOLUTIONS COMMITTEE RECOMMENDATIONS DISAPPROVE HistoryNo similar resolutions found.

:

ReasonsThis resolution amends Family Code section 3027 to require family courts to notify the local child welfare agency regarding findings of child abuse/neglect, and amends Penal Code section 11169 to require the agency to report the case to the Department of Justice (DOJ). This resolution should be disapproved because there is already a statutory means available for courts to refer the case to the appropriate local child welfare agency.

:

Family Code section 3027, subdivision (b) holds in part, “[T]he court may request that the local child welfare service agency conduct an investigation of the allegations pursuant to section 328 of the Welfare and Institutions Code.” The current system keeps the requirement to report to the DOJ with the local child welfare agency, it does not expand the parties who can report nor does it create an additional burden on the court. Furthermore, it is likely that the court would rely in any evidentiary hearing on a report produced by the local child welfare agency. A significant concern regarding the proposal is the admissibility and level of proof generally accepted in the family court because the court is allowed wide discretion in the evidence that may be submitted, which often contains hearsay statements or other inadmissible evidence. The level of proof in a family court is not beyond a reasonable doubt but likely lower than preponderance of the evidence. This should not be the standard for making a referral to the DOJ. The family court is trying to determine what is in the child’s best interest, not necessarily if abuse or neglect actually occurred. Lastly, the burden of reporting to the DOJ should lie with the professionals who have the most experience in determining child abuse, the local child welfare professional, not the court. This resolution also seeks to amend Penal Code section 11169 to require certain designated agencies to forward any report prepared under Family Code section 3027, subdivision (c). The agency is required to forward this report to the DOJ if a court makes a finding under Family Code section 3037 subdivision (c) even if it does not reach its own standards for reporting to the DOJ. This requirement creates a contradiction in standards for designated agencies.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend Family Code section 3027 and Penal Code section 11169.to read as follows: §3027 (a) If allegations of child abuse, including child sexual abuse, are made during a child 1 custody proceeding and the court has concerns regarding the child's safety, the court may take 2 any reasonable, temporary steps as the court, in its discretion, deems appropriate under the 3 circumstances to protect the child's safety until an investigation can be completed. Nothing in 4 this section shall affect the applicability of Section 16504 or 16506 of the Welfare and 5 Institutions Code. 6 (b) If allegations of child abuse, including child sexual abuse, are made during a child 7 custody proceeding, the court may request that the local child welfare services agency conduct 8 an investigation of the allegations pursuant to Section 328 of the Welfare and Institutions Code. 9 Upon completion of the investigation, the agency shall report its findings to the court. 10

14

(c) Family court judicial officers who make a finding of child abuse or neglect following 11 an evidentiary hearing shall refer that case to the local child welfare agency for entry into the 12 Child Abuse Central Index, pursuant to Penal Code section 11169. 13

§11169 15 (a) An agency specified in Section 11165.9 shall forward to the Department of Justice a 16 report in writing of every case it investigates of known or suspected child abuse or severe neglect 17 that is determined to be substantiated, and any case it is referred pursuant to Family Code section 18 3027(c), other than cases coming within subdivision (b) of Section 11165.2. An agency shall not 19 forward a report to the Department of Justice unless it has conducted an active investigation and 20 determined that the report is substantiated, as defined in Section 11165.12 or unless a Family 21 Court judicial officer has made a finding of child abuse or neglect

(b) On and after January 1, 2012, a police department or sheriff's department specified in 28 Section 11165.9 shall no longer forward to the Department of Justice a report in writing of any 29 case it investigates of known or suspected child abuse or severe neglect. 30

. If a report has previously 22 been filed which subsequently proves to be not substantiated, the Department of Justice shall be 23 notified in writing of that fact and shall not retain the report. The reports required by this section 24 shall be in a form approved by the Department of Justice and may be sent by fax or electronic 25 transmission. An agency specified in Section 11165.9 receiving a written report from another 26 agency specified in Section 11165.9 shall not send that report to the Department of Justice. 27

(c) At the time an agency specified in Section 11165.9 forwards a report in writing to the 31 Department of Justice pursuant to subdivision (a), the agency shall also notify in writing the 32 known or suspected child abuser that he or she has been reported to the Child Abuse Central 33 Index (CACI).The notice required by this section shall be in a form approved by the Department 34 of Justice. The requirements of this subdivision shall apply with respect to reports forwarded to 35 the department on or after the date on which this subdivision becomes operative. 36 (d) Subject to subdivision (e), any person who is listed on the CACI has the right to a 37 hearing before the agency that requested his or her inclusion in the CACI to challenge his or her 38 listing on the CACI. The hearing shall satisfy due process requirements. It is the intent of the 39 Legislature that the hearing provided for by this subdivision shall not be construed to be 40

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inconsistent with hearing proceedings available to persons who have been listed on the CACI 41 prior to the enactment of the act that added this subdivision. 42 (e) A hearing requested pursuant to subdivision (d) shall be denied when a court of 43 competent jurisdiction has determined that suspected child abuse or neglect has occurred, or 44 when the allegation of child abuse or neglect resulting in the referral to the CACI is pending 45 before the court. A person who is listed on the CACI and has been denied a hearing pursuant to 46 this subdivision has a right to a hearing pursuant to subdivision (d) only if the court's jurisdiction 47 has terminated, the court has not made a finding concerning whether the suspected child abuse or 48 neglect was substantiated, and a hearing has not previously been provided to the listed person 49 pursuant to subdivision (d). 50 (f) Any person listed in the CACI who has reached 100 years of age shall have his or her 51 listing removed from the CACI. 52 (g) Any person listed in the CACI as of January 1, 2013, who was listed prior to reaching 53 18 years of age, and who is listed once in CACI with no subsequent listings, shall be removed 54 from the CACI 10 years from the date of the incident resulting in the CACI listing. 55 (h) If, after a hearing pursuant to subdivision (d) or a court proceeding described in 56 subdivision (e), it is determined the person' s CACI listing was based on a report that was not 57 substantiated, the agency shall notify the Department of Justice of that result and the department 58 shall remove that person's name from the CACI. 59 (I) Agencies, including police departments and sheriff's departments, shall retain child 60 abuse or neglect investigative reports that result or resulted in a report filed with the Department 61 of Justice pursuant to subdivision (a) for the same period of time that the information is required 62 to be maintained on the CACI pursuant to this section and subdivision (a) of Section 11170. 63 Nothing in this section precludes an agency from retaining the reports for a longer period of time 64 if required by law. 65 (j) The immunity provisions of Section 11172 shall not apply to the submission of a 66 report by an agency pursuant to this section. However, nothing in this section shall be construed 67 to alter or diminish any other immunity provisions of state or federal law. 68

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Sacramento County Bar Association STATEMENT OF REASONS The Problem

: The current system only requires a social worker’s substantiated findings of child abuse and/or neglect to be referred to the California State Department of Justice (DOJ) for entry into the Child Abuse Central Index (CACI) and does not permit a family law court judicial officer’s findings substantiating abuse and/or neglect, after an evidentiary hearing, to be entered into CACI.

DOJ maintains CACI to help track persons who have had findings of child abuse and/or neglect made against them. CACI is used to assist law enforcement investigations and to screen applicants for certain professional licenses, jobs, or child placements/adoptions. Perpetrators of child abuse and/or neglect can only be referred to the DOJ for entry into CACI by local child welfare agencies or law enforcement. However, when a family law judicial officer makes a

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substantiated finding, after an evidentiary hearing with more restrictive evidentiary procedures, there is no mandatory requirement that this information be reported to the DOJ for entry into CACI. This proposal does not

This proposal also as currently authored includes a retroactivity provision that does not put the onus on the courts to locate all prior substantiated cases, however, if there is a more recent case that has been substantiated within the last five years, with a noticed motion by a parent or guardian, the Court shall then refer the finding to Child Welfare Services for entry into CACI.

place any burden on child welfare services other than filling out a one page form, i.e. form BCIA 8583. It is imperative that the individuals reviewing this legislation realize that there would be no further need for an investigation of the abuse and/or neglect, as by the time the local child welfare agency receives this referral from the family court judicial officer the findings have already been substantiated under a greater scrutiny in family law courts.

This proposal does not interfere with superiority of jurisdiction since by the time a family law court substantiates a finding of child abuse and/or neglect, child welfare services has either opted to not file a dependency petition and/or has determined said allegations to be inconclusive and/or unfounded. This proposal further does not place judicial officers in the position of being mandated reporters. A mandated reporter is required to report any known or suspected instances of child abuse and/or neglect to the county Child Welfare Services or to local law enforcement for the purposes of investigation. Here, a judicial officer has already determined that the abuse took place and is simply required to refer the finding for entry into CACI not another investigation. The Solution

: This proposal would (1) amend Family Code section 3027 to require family courts to notify their local child welfare agency when the court has substantiated allegations of child abuse and/or neglect, after an evidentiary hearing, and (2) require the child welfare agency to refer the case to the DOJ for entry into CACI.

IMPACT STATEMENT This resolution does not affect any other law, statute or rule not mentioned herein. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Tiffany L. Andrews, CWLS, 6611 Folsom Auburn Rd., Suite H, Folsom CA 95630, voice (707) 592-9603 or (916) 790-8440, fax (916) 988-8440, email tandrews@tlalawoffice.com RESPONSIBLE FLOOR DELEGATE: Tiffany L. Andrews

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SECTION COMMENTS TO RESOLUTION 09-08-2015

FAMILY LAW SECTION OF THE STATE BAR OF CALIFORNIA Disapprove Rationale: The Executive Committee of the Family Law Section of the State Bar of California (FLEXCOM) disapproves this Resolution. There are a number of concerns with this Resolution as written. These include but are not limited to, the following: 1. This proposal will create too great a burden on an already overloaded court to bear; 2. Existing law (Penal Code) currently defines “child abuse” in a number of different ways, one of which must be satisfied to substantiate a referral. The Family Court is not bound by the Penal Code definition under this Resolution. This could result in a Family Court “substantiating” a report that does not satisfy the current legal basis for a referral to be sent to the Department of Justice for the CAIC Index; 3. This Resolution undermines the statutory anonymity of reports to CPS/Child Abuse Registry (CAR) and removes discretion of the court; 4. Parties whose names are going to be submitted to CAR now have the right to an administrative hearing before the names go in. This Resolution eliminates that in a family court referral, drawing the Judge into the decision as to submission or removal. Disclaimer: This position is only that of the FAMILY LAW SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the FAMILY LAW SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

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RESOLUTION 09-09-2015 DIGEST Family Law: Service of Motion After Entry of Bifurcation Amends Family Code section 215 to clarify that motions filed after entry of a bifurcated judgment of dissolution should be served on counsel of record and not the party directly. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Family Code section 215 to clarify that motions filed after entry of a bifurcated judgment of dissolution should be served on the counsel of record and not the party directly. This resolution should be approved in principle because a bifurcated entry of judgment in a dissolution matter often resolves just the marital status of the parties but no other issues, restoring the parties to the status of “single,” while preserving jurisdiction to the court to resolve all remaining issues. A bifurcated judgment of dissolution is often entered earlier in a case than any other orders dissolving property or determining support or custody issues. Parties most often request a bifurcated judgment of dissolution in order to remarry or for tax considerations, but a bifurcated judgment of dissolution does not resolve all issues in the case. Under the current wording of this section, any motions entered after a bifurcated judgment for dissolution would have to be served personally on the non-moving party even though that party remains represented. Service on the non-moving party would therefore only increase costs and may cause some motions to “fall through the cracks” in that the parties may not notify counsel of receipt of these time sensitive documents in a timely manner, if counsel is notified at all. It is not uncommon to also have a partial judgment resolving some issues, but reserving jurisdiction to the court of other issues. Additional clarification that any motion filed after a partial judgment also should be served on counsel would also be helpful. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Family Code section 215 to read as follows: §215 (a) Except as provided in subdivisions (b) and (c), after entry of a judgment of dissolution 1 of marriage, nullity of marriage, legal separation of the parties, or paternity, or after a permanent 2 order in any other proceeding in which there was at issue the visitation, custody, or support of a 3 child, no modification of the judgment or order, and no subsequent order in the proceedings, is 4 valid unless any prior notice otherwise required to be given to a party to the proceeding is served, 5

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in the same manner as the notice is otherwise permitted by law to be served, upon the party. For 6 the purposes of this section, service upon the attorney of record is not sufficient. 7 (b) A postjudgment motion to modify a custody, visitation, or child support order may be 8 served on the other party or parties by first-class mail or airmail, postage prepaid, to the persons 9 to be served. For any party served by mail, the proof of service must include an address 10 verification. 11 (c) This section does not apply to a bifurcated judgment of dissolution under Family 12 Code section 2337. 13

(Proposed new language underlined; language to be deleted stricken) PROPONENT: The Bar Association of San Francisco STATEMENT OF REASONS The Problem: Family courts have interpreted section 215 to require service to a party and not his or her attorney when a case has been bifurcated and an early judgment of dissolution entered, reserving jurisdiction over the other issues presented in the case. This is because the technical reading of section 215 requires that. However, a bifurcated judgment of dissolution resolves just one aspect of the case, and the matter still must proceed to a final judgment on all issues (property, support, custody, etc.). A technical reading of Family Code section 215 leads to unintended results which create complications for litigants. The Solution: This resolution clarifies that the provisions of Family Code section 215 do not apply to bifurcated judgments. IMPACT STATEMENT This resolution does not affect any other statute, rule or law. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Michelene Insalaco, 101 Spear Street, Suite 1640, San Francisco CA 94105, (415) 357-5050, MI@Sucherman-Insalaco.com RESPONSIBLE FLOOR DELEGATE: Michelene Insalaco

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SECTION COMMENTS TO RESOLUTION 09-09-2015 FAMILY LAW SECTION OF THE STATE BAR OF CALIFORNIA Approve Rationale: The Executive Committee of the Family Law Section of the State Bar of California (FLEXCOM) approves this Resolution as being a reasonable and practical way to deal with the underlying issue. Disclaimer: This position is only that of the FAMILY LAW SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the FAMILY LAW SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

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RESOLUTION 09-01-2015 DIGEST Family Law: Deletes Reference to Family Code section 20102 from Family Code section 7612. Amends Family Code section 7612 to delete reference to Family Code section 20102, which became inoperable in 1993. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Family Code section 7612 to delete reference to Family Code section 20102, which became inoperable in 1993. This resolution should be approved in principle because Family Code section 20102 failed to become operative with the expiration of a pilot project and was repealed by statute in 1993. This resolution cleans up an obsolete reference and should therefore be approved in principle. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Family Code section 7612 to read as follows: §7612 (a) Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3 1 (commencing with Section 7570) of Part 2 or in Section 20102, a presumption under Section 2 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an 3 appropriate action only by clear and convincing evidence. 4

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem: Existing law contains a reference to Family Code section 20102 in Family Code section 7612. Family Code section 20102 was repealed in 1993, hence the reference to it in Family Code section 7612 is obsolete. The Solution: This Resolution deletes the reference to Family Code section 20102 from Family Code section 7612.

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IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Mary V.J. Cataldo, Esq., Procopio, Cory, Hargreaves & Savitch, LLP, 12544 High Bluff Drive, Ste. 300, San Diego, CA 92130; (760) 444-1773; mary.cataldo@procopio.com RESPONSIBLE FLOOR DELEGATE: Mary V.J. Cataldo, Esq.

SECTION COMMENTS TO RESOLUTION 09-01-2015 FAMILY LAW SECTION OF THE STATE BAR OF CALIFORNIA Approve

Rationale: The Executive Committee of the Family Law Section of the State Bar of California (FLEXCOM) approves this Resolution as being necessary given the repeal of the referenced Code Section.

This position is only that of the FAMILY LAW SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California.

Disclaimer:

Membership in the FAMILY LAW SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

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RESOLUTION 09-02-2015 DIGEST Spousal Transfers: Presumption of Undue Influence Amends Family Code section 721 to provide that a presumption of undue influence that applies to interspousal transactions will not apply to transfers that take effect or become irrevocable at one spouse’s death. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Family Code section 721 to provide that a presumption of undue influence that applies to interspousal transactions will not apply to transfers that take effect or become irrevocable at one spouse’s death. This resolution should be disapproved because there is no ambiguity to resolve and the resolution as written creates an unnecessary exception. In California, property-related transactions between spouses are subject to a duty of the highest good faith and fair dealing. This duty stems from the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. The duty prohibits a spouse from taking any unfair advantage of the other. Thus, if one spouse secures an advantage from a property transaction, a statutory presumption arises under section 721 that the advantaged spouse exercised undue influence and the transaction will be set aside unless the advantaged spouse can rebut the presumption, by clear and convincing evidence. (See, e.g., In re Marriage of Fossum (2011) 192 Cal.App.4th 336.) The spousal presumption of undue influence will arise when a prima facie case is made showing: (1) the existence of a confidential relationship (presumed when parties are married), (2) a transaction based on that relationship, and (3) either an advantage by one spouse or unfairness of the agreement. (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 293-294.) The proponent asserts that Lintz v. Lintz (2014) 222 Cal.App.4th 1346, creates uncertainty by applying the presumption of undue influence to a will or other estate instrument created unilaterally by one spouse to benefit the other. However, estate planning undertaken by one spouse is not a “transaction between spouses” and so is already exempt from the application of the presumption. Joint estate planning transactions, such as those that occurred in Lintz, are properly subject to the presumption; a rule exempting these transactions would undermine the public policy behind the spousal fiduciary duties. (Id., at p. 1353 [the presumption of undue influence clearly applied to the transmutation and the creation of the trust].) It should also be noted that pursuant to Probate Code sections 143 and 144, Family Code section 721 does not apply to a waiver of a surviving spouse’s inheritance and probate rights.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend Family Code section 721 to read as follows: §721 (a) Subject to subdivision (b), either spouse may enter into any transaction with the other, 1 or with any other person, respecting property, which either might if unmarried. 2 (b) Except as provided in Sections 143, 144, 146, 16040, and 16047of the Probate Code, 3 in transactions between themselves, spouses are subject to the general rules governing fiduciary 4 relationships that control the actions of persons occupying confidential relations with each other. 5 This confidential relationship imposes a duty of the highest good faith and fair dealing on each 6 spouse, and neither shall take any unfair advantage of the other. This confidential relationship is 7 a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as 8 provided in Sections 16403, 16404, and 16503 of the Corporations Code, including, but not 9 limited to, the following: 10 (1) Providing each spouse access at all times to any books kept regarding a transaction 11 for the purposes of inspection and copying. 12 (2) Rendering upon request, true and full information of all things affecting any 13 transaction that concerns the community property. Nothing in this section is intended to impose a 14 duty for either spouse to keep detailed books and records of community property transactions. 15 (3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from 16 any transaction by one spouse without the consent of the other spouse that concerns the 17 community property. 18 (c)

A transfer between spouses that takes effect or becomes irrevocable at the transferor’s 19 death is not a transaction within the meaning of this section. 20

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Sacramento County Bar Association STATEMENT OF REASONS The Problem

…[I]n

: Existing law is unclear regarding whether or when standard spousal property transfers taking effect at the transferor’s death create a presumption of undue influence by the transferee under Family Code section 721 (“Section 721”). Lintz v. Lintz (2014) 222 Cal.App.4th 1346 creates estate planning uncertainty by suggesting that standard spousal property transfers taking effect at the transferor’s death create a presumption of undue influence by the transferee under Section 721. In Lintz, revocable trust terms changed over time to improve the surviving spouse’s situation to the point where she controlled the husband’s estate and could exclude his children. The court held that with respect to amendments after a certain point, the probate court should have applied a presumption of undue influence under Subsection (b) of Section 721, which states in relevant part as follows:

transactions between themselves, spouses are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair

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dealing on each spouse, and neither shall take any unfair advantage

The central portions of the court’s analysis state as follows:

of the other….[Emphasis added]

Family Code section 721 applies here. ...[T]here is no indication in the record before us that the probate court applied the presumption of undue influence arising from that section. The presumption should have been applied …. The trust advantaged defendant [wife] by …giving [her] the right to … pass decedent’s property either to her own children or to her individual estate. 222 Cal.App.4th at page 1353. This analysis has numerous flaws. First, Section 721 applies only to “transactions” between spouses, but there is no definition of “transaction” for this purpose, and typical spousal estate planning transfers that take effect or become irrevocable at the transferor’s death do not meet standard “transaction” definitions. Second, Section 721 mentions neither undue influence nor a presumption. Third, Section 721applies only when one spouse takes an “unfair advantage” of the other, but the court did not consider the fairness of the transfers. Fourth, the court did not analyze whether a spouse’s improvement in position is relative to the spouse’s intestate share or relative to a prior estate planning document, and either approach raises policy concerns and the potential for irrational results. Finally, the court did not indicate whether the presumption applies even when the transferring documents take effect at death or are revocable and, therefore, the transferee spouse’s position does not legally improve until the transferor’s death. The court issued an opinion that creates significant uncertainty in standard spousal estate planning. The Solution

: This Resolution would propose to eliminate this uncertainty through an amendment to Section 721. Because Family Code Section 721 applies only to a “transactions,” amending that statute to exclude from the definition of a “transaction” spousal transfers taking effect or becoming irrevocable at the transferor’s death would resolve most of the uncertainty Lintz has created.

IMPACT STATEMENT The proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Sil Reggiardo, Downey Brand LLP 621 Capitol Mall, Suite 1800, Sacramento, CA 95814-4731, (916) 520-5374 sreggiardo@downeybrand.com. RESPONSIBLE FLOOR DELEGATE: Sil Reggiardo

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SECTION COMMENTS TO RESOLUTION 09-02-2015 TRUSTS AND ESTATES SECTION OF THE STATE BAR OF CALIFORNIA OPPOSE

TEXCOM opposes the Resolution because it may have unintended consequences and should be given further study before an attempt at implementation. In principle, TEXCOM supports the effort to undo the apparent holding of Lintz v. Lintz (2014) 222 Cal.App.4th 1346, which suggests that there should be a presumption of undue influence under Family Code section 721 when one spouse designates the other spouse as a beneficiary in a revocable trust. However, as worded, the proposed amendment does not directly address the problem to be remedied, and the language creates several issues to be considered.

First, the wording is potentially ambiguous. For example, some readers might believe that a distribution by a trustee or personal representative to a surviving spouse is not a “transfer between spouses” at all and hence the Resolution does not address the Lintz issue. Others might become confused and think that joint tenancies are no longer subject to a presumption of undue influence because the interest appears to pass at death.

Furthermore, the proposed amendment might have unintended consequences because it may engender confusion about whether spouses still have a confidential relationship for the purpose of the common-law test for shifting the burden of proof on undue influence (i.e., confidential relationship, active participation, and undue benefit). As worded, the amendment might create uncertainty in this regard.

In addition, the proposed amendment seems to have an unintended result with regard to contracts to make a testamentary disposition. A contract to make a will is an inter-vivos transaction between spouses and hence should fall under the existing presumption of Family Code section 721. Most contracts are revocable in the sense that a party can choose to breach them and face whatever consequences might follow. Under the proposed amendment, however, a transfer as the result of a contract to make a testamentary disposition would seem to be exempt from the presumption of undue influence under Family Code section 721, which did not seem to be an intention of the Resolution.

As a general proposition, it seems correct that estate planning matters (i.e., one spouse designating the other spouse as a beneficiary in an instrument that only directs the transfer of property to the surviving spouse as a result of the transferor spouse’s death) should not be governed by Family Code section 721. However, as set forth above, TEXCOM believes that the proposed amendment raises various issues that warrant further consideration and for that reason opposes the current Resolution.

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DISCLAIMER:

This position is only that of the TRUSTS & ESTATES SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the TRUSTS & ESTATES SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

COUNTERARGUMENTS TO RESOLUTION 09-02-2015 BAR ASSOCIATION OF NORTHERN SAN DIEGO COUNTY Since transaction is not defined, this proposed resolution has the potential to remove the fiduciary obligations that one spouse has to the other spouse. This resolution, in light of Lintz v. Lintz (January 14, 2014) --- Cal.Rptr.3d ----,, could be interpreted to remove the facts and circumstances considerations when determining undue influence. This proposed resolution could also open the door to more fraud on the elderly. In particular, this exacerbates the growing problem of elders who are influenced to marry their young caregivers, who then transfer all of the elder’s assets to themselves before death.

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RESOLUTION 09-03-2015 DIGEST Family Law: Creates an Exception to the Mediation Privilege Amends Evidence Code section 1120 to create an exception to the mediation privilege for communications between spouses that constitute a fraudulent breach of fiduciary duty. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Evidence Code section 1120 to create an exception to the mediation privilege for communications between spouses or Registered Domestic Partners that constitute a fraudulent breach of fiduciary duty. This resolution should be disapproved because to allow such an exception for family law cases would contravene well established public policy. Family Code section 721 imposes a fiduciary relationship on spouses and subjects them to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. Under Family Code section 1100, this fiduciary relationship continues until all assets are distributed. It is problematic for either spouse to assert or defend a breach of fiduciary duty where this breach occurred during mediation because any documents or communications prepared for and relied upon during the mediation, and upon which the agreement was based are not admissible. This problem of proof, however, is not unique to Family Law. Fiduciary relationships exist in many different areas of law - between a guardian and ward, trustee and beneficiary, principal and agent, or attorney and client, as well as between spouses. The conflict between confidentiality for mediation and the admissibility of evidence of a breach of fiduciary duty often means that the control of key evidence is in the hands of the party who engaged in misconduct yet fails to waive this confidentiality. Nevertheless, there is a strong and consistent legislative policy favoring mediation and the need to safeguard mediation confidentiality across all areas of law. A principal purpose of the mediation confidentiality statutes is to assure prospective participants that their interests will not be damaged, first, by attempting this alternative means of resolution, and then, once mediation is chosen, by making and communicating the candid disclosures and assessments that are most likely to produce a fair and reasonable mediation settlement. If courts begin to apply the good cause test to material otherwise subject to mediation confidentiality, parties will be less willing to mediate. Finally, there is no compelling reason for family law actions to be excluded from the confidentiality mandates of section 1120 more than any other area of law. A recent case, Lappe v. Superior Court (2014) 232 Cal.App.4th 774, review denied, Mar. 11, 2015, held that all declarations, preliminary or final, are not confidential even if they were prepared in contemplation of, or during mediation. The codification of this case may obviate the need for such a sweeping amendment as set forth in this resolution.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Evidence Code section 1120, to read as follows: §1120 (a) Evidence otherwise admissible or subject to discovery outside of a mediation or a 1 mediation consultation shall not be or become inadmissible or protected from disclosure solely 2 by reason of its introduction or use in a mediation or a mediation consultation. 3 (b) In family law actions, evidence of a breach of the fiduciary duty by a spouse, as set 4 forth in Sections 721 and 1100, that falls within the ambit of Section 3294 of the Civil Code shall 5 be admissible and subject to discovery. 6 (c) This chapter does not limit any of the following: 7 (1) The admissibility of an agreement to mediate a dispute. 8 (2) The effect of an agreement not to take a default or an agreement to extend the time 9 within which to act or refrain from acting in a pending civil action. 10 (3) Disclosure of the mere fact that a mediator has served, is serving, will serve, or was 11 contacted about serving as a mediator in a dispute. 12

(Proposed new language underlined; language to be deleted stricken)

PROPONENT: The Bar Association of San Francisco STATEMENT OF REASONS: The Problem: Family law litigants stand in a unique position in that they owe fiduciary duties to one another. While the mediation privilege promotes an important public policy, guarding against one spouse / RDP inducing the other to settle a dissolution case through the use of false, misleading, or fraudulent information is also an important public policy. This resolution seeks to balance these policies, by providing that when a breach of fiduciary duty that rises to a fraud (violation of Civil Code Section 3294) occurs in family law mediation, the spouse who was harmed by that can present evidence about the breach to the court. Existing law totally bars admission of any communications made during mediation, even if blatant fraud occurred, and with no exceptions regardless of the circumstances or prejudice caused. The Solution: This resolution adds an exception to the mediation privilege. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known.

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AUTHOR AND/OR PERMANENT CONTACT: Michelene Insalaco, 101 Spear Street, Suite 1640 San Francisco CA 94105, (415) 357-5050 MI@Sucherman-Insalaco.com RESPONSIBLE FLOOR DELEGATE: Michelene Insalaco

COUNTERARGUMENTS TO RESOLUTION 09-03-2015 BAR ASSOCIATION OF NORTHERN SAN DIEGO COUNTY The mediation privilege is quite broad for a reason – it encourages complete and candid communications in an attempt to resolve disputes among the parties. To create an exception based on “breach of fiduciary duty,” whether it is between spouses or any other persons who owe fiduciary duties to one another (attorney-client, trustee-beneficiary, etc.) guts this important purpose and would chill any candid communication in mediations in family law matters. ORANGE COUNTY BAR ASSOCIATION Proponents claim “family law litigants stand in a unique position in that they owe fiduciary duties to one another (emphasis added).” Fiduciary duties, however, flow from many relationships such as attorney/client, trustee/beneficiary, and principal/agent. Per Family Code section 721(b), in transactions between spouses, because of their confidential relationship, spouses are subject to “the general rules governing fiduciary relationships.” The phrase “general rules” makes clear there is nothing unique to family law. In truth, Section 721(b) delineates the spousal fiduciary relationship by way of sole reference to the rights and duties of business partners. While acknowledging the important public policy mediation confidentiality promotes, proponents argue that guarding against fraudulently inducing a spouse to enter into an unfair marital settlement agreement (“MSA”) is also an important public policy. In family law, to guard against unfairness in inter-spousal transactions, whether the product of fraud or even lesser bad-action, established public policy already provides a rebuttable presumption of undue influence where one spouse obtains an advantage. Generally, a target transaction would include an MSA. Courts repeatedly, however, have precluded the application of the presumption to mediated MSAs. The application of the proposed exception is not unlike that of the presumption, and judicial observations as to its preclusion are relevant. Courts have observed, “’[a]pplication of the presumption would turn the shield of mediation confidentiality into a sword by which any unequal agreement could be invalidated. We do not believe that the Legislature could have intended that result when it provided spousal fiduciary duties on the one hand and mediation confidentiality on the other.’ [Citation.]” In re Marriage of Woolsey (2013) 220 Cal.App.4th 881, 902. Competing public policies have been argued and weighed. That which supports mediation confidentiality has been determined as the greater, and there is no need or ability to “balance” the two.

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Proponents present the exception as a limited intrusion, only coming into play when the breach of spousal fiduciary duty rises to a fraud. Every practitioner knows fraud must be specifically plead, and the glaring problem here is in particularizing what was said. To reach such evidence, all mediation communications would have to be discoverable, and the exception would allow that based upon a simple allegation. Statements and documents of all participants and the mediator could be sifted through in search of proof. This proposal would effectively destroy any predicable confidentiality as is the purpose and intent of the current statutory design which protects participants and assures them, in advance, that with extremely limited exception, their communications will not become evidence or made public. This exception would not only jeopardize any mediated settlement, but the efficacy and desirability of family mediation, as well. Finally, due to recent legislation sponsored by CCBA, the California Law Revision Commission (“CLRC”) is currently conducting a comprehensive review of mediation confidentiality and relevant California statutes, including Evidence Code section 1120. Rather than pursue competing legislation, it would seem more efficacious for proponents to testify before CLRC as to their concerns. SAN DIEGO COUNTY BAR ASSOCIATION The SDCBA Delegation urges disapproval of Resolution 09-03-2015. This resolution should be disapproved because it defeats the confidentially of a mediation only because of the nature of the dispute. If mediations are to be compromised based on the factual nature of the dispute, the exceptions will eat the whole. Breaches of fiduciary duties are part and parcel of domestic relations. There is no inherent distinction between a domestic relations dispute mediation and any other. BY 10 MEMBERS (FAMILY LAW ATTORNEY-MEDIATORS) We are a group of twelve family law attorney-mediators from throughout California that is very concerned about Resolution 09-03-2015, and the limits to mediation confidentiality that it proposes. As members of the California State Bar, we write to formally submit the following Counterargument. Confidentiality has been a hallmark of mediation in California for the last two decades, and is one of the main reasons for its success as an alternative to litigation in the family law context. One of the central distinctions between mediation and litigation is that, in mediation – in large part due to the bright line confidentiality that characterizes the process – parties may speak freely without concern that their disclosures will later be made public or used against them in court. Although mediators across substantive areas value confidentiality, we have observed that it is especially vital in family law, where communications made in the course of mediation are frequently of an extremely personal nature. Whereas litigation is often characterized by positioning – which can distance the parties from one another and negatively impact the parties’ relationship and ability to co-parent effectively -- the bright line confidentiality characteristic of mediation encourages parties to speak freely about their interests, as well as the advantages and

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disadvantages of their legal positions, without fear that their frankness will harm them in court if they are unable to reach a mediated agreement. It is this freedom to speak honestly and openly that is the keystone to mediation’s success. If implemented, the Resolution’s proposed exception would swallow the rule, leaving vulnerable all communications in mediated cases, thereby robbing mediation of the very thing which has made it such a valuable process for family law disputants: predictable, bright line confidentiality. Although we appreciate the Resolution’s proponents’ concerns regarding the potential for breach of the spousal fiduciary duty, this issue is already specifically addressed by California’s financial disclosure laws, which are executed under penalty of perjury, and are not protected by mediation confidentiality. As attorneys, we understand that if and when empirically-based concerns arise that do warrant legislative solutions, it is important that such solutions be tailored as narrowly as possible to avoid any unintended negative consequences. In this case, the Resolution is not narrowly tailored; rather, the strokes with which it has been drawn are so broad that the Resolution stands to endanger the continued efficacy of family law mediation in California. If, after evaluating the empirical basis for this Resolution, you conclude that breaches of spousal fiduciary duty in mediation are of such genuine concern that further legislation is warranted, we urge you to consider a solution that would amend the financial disclosure laws as necessary, while keeping bright line mediation confidentiality intact. Respectfully submitted, 1. Suzan Barrie Aiken; SBN: 157697 2. Olivia Sinaiko; SBN: 289219 3. Hildy L. Fentin; SBN: 111518 4. Barney Connaughton; SBN: 163402 5. Frederick Glassman; SBN: 38570 6. Nancy J. Foster; SBN: 68533 7. Kristine Stewart; SBN: 271774 8. Shawn Weber; SBN: 216425 9. Bill Eddy; SBN: 163236 10. Catherine Conner; SBN: 104324 BY 10 BASF MEMBERS Submitted by the following members of the State Bar: Yaroslav Sochynsky, SB#54600, Oakland; Terry Norbury, SB#214395, San Francisco; Coreal Riday-White, SB#267732, San Francisco; Malcolm Sher, SB#72629, Danville; Nancy Powers, SB#87603, San Ramon; Paula M. Lawhon, SB#203368, San Francisco; Shelley Kennedy, SB#273123, San Francisco; Meredithe Kreis, SB#257625, San Francisco; Lennie Noordhoorn Gee, SB#182523, Encinitas; Thomas D. Ferreira, SB#131885, Carlsbad; Ariel B. Winger, SB#184179, Berkeley; Gayle M. Tamler, SB#106622, Beverly Hills; Amanda D. Singer, SB#293606, Del Mar; Eileen Barker, SB#124734, San Rafael; Unmani Sarasvati, SB#234836, San Francisco; David Fink, SB#130919, San Francisco; Eva Herzer, SB#98109, Albany; Chris Sawyer, SB#230764, San Francisco; Catherine Conner, SB#104324, Santa Rosa; Mary B. Culbert, SB#118635, Los Angeles; Karen Lipney, SB#120835, San Francisco

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Enactment of the legislation proposed by Resolution 09-03-2015 threatens to end effective family mediation. Family mediators would need to adopt a new opening statement along the following lines: "Warning! Anything you say may become evidence in court. If your spouse later claims you intentionally misrepresented anything important, your confidentiality protections evaporate." The legislation it proposes would open up wide discovery of mediation communications on an allegation. Predictable confidentiality was the intent of our current bright line rule, Evidence Code section 1119. Currently, mediation participants can be assured in advance that their own words will not become evidence later except in criminal proceedings. Some say this resolution's requirement that the evidence sought "falls within the ambit of Civil Code section 3294" provides a reasonable limit on which mediation communications will lose their current protection for discovery and admissibility. 3294 says it applies where "the defendant has been guilty of oppression, fraud, or malice" and says "'Fraud' means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury." For a discovery subpoena, this standard would appear to be satisfied with an allegation of fraud, and the assertion that the mediation communications sought in discovery are intended to be offered as evidence of intentional misrepresentation of a material fact with intent to deprive. Going further, if evidence of some mediation communications is obtained through subpoena of the mediator's files, or in a participant's deposition, then the other side might reasonably seek to discover and offer many other mediation communications to defend against the alleged fraud, or to put it in context. In family mediation, predictable confidentiality would be gone if the resolution's proposed legislation becomes law. We request the Committee on Resolutions recommend other ways to address the problem raised. For example: 1) In Lappe v Superior Court (2014), the Court of Appeal ruled that Evidence Code section 1120 already allows discovery and admission of the financial disclosures required under Family Law Code sections 2104 and 2105 even if they were prepared in the course of a mediation. CCBA could propose legislation requiring these financial disclosures in all marital dissolutions if needed to address In Re Marriage of Woolsey.

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2) CCBA already sponsored recent legislation to amend Evidence Code section 1120. This became AB 2025 (Gorell). In response, the Law Revision Commission is already currently studying amendment of section 1120. CCBA's legislative representative is already testifying about this regularly at the Commission. CCBA could request the Commission make the changes sought by resolution 09-03-2015. Nearly all legislation recommended by the Commission is enacted into law. We respectfully request the Committee on Resolutions either recommend disapproval or request the author amend the resolution as suggested above. BY 10 MEMBERS – LOS ANGELES WESTSIDE COLLABORATIVE DIVORCE PROFESSIONALS AND BETTER DIVORCE Dear Mr. Crabtree-Ireland and Ms. Kim: I am writing to you on behalf of the attorney members of the Los Angeles Westside Collaborative Divorce Professionals and a Better Divorce, two interdisciplinary organizations of professionals engaged in collaborative practice pursuant to California Family Code §2013. This letter is sent by the attorneys copied below, all of whom are members in good standing of the State Bar of California. The collaborative process incorporates California Evidence Code §1115-1128 for confidentiality in our cases. We join our mediation colleagues in vehemently opposing Resolution 09-03-2015 for the following reasons: 1. The stated purpose of the resolution is to protect family law litigants engaged in mediation or another collaborative process from fraud. However, this important priority is already addressed by Evidence Code §1120, which permits admission of all requisite financial declaration of disclosures required under California Family Code §2104 and 2105 prepared in mediation or otherwise.. The declarations of disclosures, executed under penalty of perjury and exchanged by each spouse prior to execution of the Marital Settlement Agreement. (See Lappe, supra.), deter failure to comply with fiduciary duties set forth in Family Code §721 and 1100, while preserving mediation confidentiality. 2. A long line of California Appellate and Supreme Court cases, recognizing that “confidentiality and neutrality are the life and breath of mediation” (In re Marriage of Kieturakis (2006) 138 Cal. App. 4th 56 quoting Anne Lober) have protected the assurance of confidentiality with no exceptions. See Foxgate Homeowners’ Assn v. Bramalea California, Inc. (2001) 26 Cal. 4th 1, Eisendrath v. Superior Court (2003) 109 Cal. App. 4th 351, In re Marriage of Kieturakis, supra, Rojas v. Superior Court (2007) 33 Cal. 4th 407, Wimsatt v. Superior Court (2007) 152 Cal. App. 4th 137, Cassell v. Superior Court (2011) 51 Cal. 4th 113, Marriage of Woolsey (2013) 220 Cal. App. 4th 881, and Lappe v. Superior Court (2014) Cal. App. 4th 774. The proposed Resolution runs afoul of these well reasoned decisions by creating an exception to previously sacrosanct mediation confidentiality.

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3. The same dilemma (fiduciary duties versus mediation communications) has been addressed by our Courts. When claims of undue influence (which would include false or misleading information or even fraudulent conduct) have been challenged, mediation confidentiality has prevailed. (See Kieturakis, supra, strict mediation confidentiality prevailed over claimed undue influence regarding spousal fiduciary duties.) 4. The Resolution’s proposed exception, while appearing limited, would in fact swallow the rule, and inevitably open all communications in mediated cases upon any allegation by an aggrieved party re: breach of fiduciary duties. By opening up the floodgates, parties would lose all the benefits of sancrosanct mediation confidentiality in order to protect against the very small minority who misuse these valuable mediation and settlement processes. We must balance the preservation of settlement processes which contribute to the settlement of an enormous number of high conflict matters against concerns of abuse which are already addressed by admissible Declarations of Disclosure. For these reasons, we respectfully request the Resolutions Committee to disapprove the subject Resolution. Yours Very Truly, Los Angeles Westside Collaborative Divorce Professionals Armine Baltazar, abaltazar@hammersbaltazar.com (SBN 193051) Jill Cohen jillcohenmediation@gmail.com (SBN 268934) Gerald Friedman, glfriedmanlaw@gmail.com (SBN 33401) Frederick Glassman fglassman@fglawcorp.com (SBN 38570) Debi Graboff, debigraboff@gmail.com, (SBN 110600) Fahi Hallin, ftakesh@harris-ginsberg.com (SBN 186665) Jeffery Jacobson jeff@jssfamilylaw.com (SBN 187329) Michelle Katz mickey@michelle-katz.com (SBN 80610) John Lazor, johnlazor@johnlazor.com (SBN 162172) Dvorah Markman markmand@familylawmediation.com (SBN 55876) Judith C. Nesburn jcnesburn@aol.com (SBN 126066) Ronald Rosenfeld, rar@beverlyhillslaw.com (SBN 36148) Jena Stara, jls@starafamilylaw.com (SBN 186983) Heidi S. Tuffias, htuffias@heidituffias.com (SBN 151133) A Better Divorce Kim Davidson kim@kimberlydavidson.com SBN 188558 Michael Eller ellerlaw2@aol.com (SBN 140953) Jane Euler jane@lauzoneuler.com (SBN 176519) Deborah Ewing ewingesq@sobaylaw.com (SBN 107568) James Hallett jmhallettlaw@earthlink.net (SBN 53686)

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Leslie Hart lesliehartlaw@aol.com (SBN 115460) Kenneth Harvey kharvey@jhkfamillaw.com (SBN 57245) Wendy Jones wjones@dadlaw.com (SBN 196892) Erin McGaughey erin@mcgs-law.com (SBN 227744) Tara McGuinness tara@taramcguinenness.com (SBN 101839) Julie A. Milligan milligan@silmillaw.com ( SBN 124419) Christopher Moore mail@mbsllp.com (SBN 36949) Colin O’Connor colin@redondofamilylaw.com (SBN 155450) Joseph Spirito Jr joe@mcgs-law.com (SBN 106360) B. Elaine Thompson ethompsonlaw@gmail.com (SBN 75136) Kerry Wallis kwallis@graylawcorp.com (SBN 205650) David K. Yamamoto david@dkylaw.com (SBN 12313) ///

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09-03-2015 Page 11 of 12

1

COUNTERARGUMENT TO RESOLUTION 09-03-2015

SUBMITTED BY MEMBERS OF THE CALIFORNIA STATE BAR

ON BEHALF OF LOS ANGELES COLLABORATIVE FAMILY LAW ASSOCIATION

WWW.LACFLA.ORG

May 18, 2015

Sent Via E-mail

Duncan Crabtree-Ireland, Conference Chair eMail: chair@calconference.org

Jennifer Kim, Committee Chair eMail: resolutions@calconference.org

Bruce D. Sires, BHBA CCBA Co-Chair eMail: bds@vrmlaw.com

Jonathan A. Stein, BHBA CCBA Co-Chair eMail: jstein@jsteinlaw.com

Robin Bernstein-Lev, LACBA CCBA Chair eMail: rbernstein-lev@pubdef.lacounty.gov

Roger Franklin, SFVBA CCBA Chair eMail: rogerfranklin@prodigy.net

I am writing to you on behalf of the attorney members of the Los Angeles Collaborative

Family Law Association (LACFLA). LACFLA is a countywide organization (IRC 501(c)3)

made up of over 50 lawyers, together with another 50 mental health and financial professionals

engaged in collaborative practice as a consensual dispute resolution process for family law

disputants pursuant to California Family Code §2013. In addition, local Superior Court Rule in

Los Angeles (5.26) authorizes the collaborative law process throughout the County of Los

Angeles. The collaborative process incorporates California Evidence Code §1115-1128 for

confidentiality in our cases. The LACFLA Board of Directors along with its past Presidents join

our fellow mediation colleagues in opposing Resolution 09-03-2015 for the following reasons:

1. The stated purpose of the resolution is to protect family law litigants engaged in

mediation or in the collaborative process from fraud. Yet this is already addressed by Evidence

Code §1120, which permits admission of all requisite financial declaration of disclosures

required under California Family Code §2104 and 2105 prepared in mediation or otherwise. The

“ fix‘tfiu 376‘”;

Southern California Mediation Association

May 18, 2015

Duncan Crabtree-Ireland

Jennifer Kim

Conference of California Bar Associations

340 S. Lemon St., #1282

Walnut, CA 91789

re: Resolution 09-03-2015 to the Conference of California Bar Associations

Dear Conference Chairs:

The Southern California Mediation Association, the leading organization in Southern

California supporting the practice of mediation, opposes amending California Evidence Code

1 120 to allow discovery and the admissibility of evidence, in family law actions, of breaches of

fiduciary duty amounting to oppression, fraud or malice.

While family law mediators share the goal of preventing abuse in the resolution of family

law actions, existing remedies provide adequate protection. Creating a new exception to

mediation confidentiality would not only threaten the continued viability of mediation

proceedings that have proven so useful to resolving many thousands of family law disputes, but

would also create new opportunities for costly and destructive litigation.

The courts in California have repeatedly upheld the strong protections for mediation

confidentiality contained in Evidence Code §1119. See, e.g., Rojas v. Superior Courtfor the

State ofCalifornia, 33 Cal. 4th 407 (2004); Simmons v. Ghadert', 44 Cal .4th 570 (Cal. 2008);

Caste] vs. Superior Court, 51 Cal.4th 113 (2011). The courts recognize that confidentiality is

fundamental to mediation, and that carving out exceptions to confidentiality would undermine

the practice and provide opportunities for parties to create new controversies, precisely the result

that parties seek to avoid when they choose mediation.

No compelling need has been shown to carve out the proposed exception for family law

mediation. The disclosure obligations of the Family Law Code § 2104, et seq. already provide

strong protections from the conduct described in the proposed resolution. If a party has been

guilty of this kind of abusive conduct in a divorce mediation, their fraud will generally be

evident in their financial disclosures (or lack thereof). Existing remedies for such fraudulent

conduct include setting aside the judgment, and monetary sanctions against attorneys and parties.

Moreover, these financial disclosures are already discoverable and admissible under

existing law even if they were prepared in the course of mediation proceedings. The recent case

Lappe vs. Superior Court, 232 Cal.App.4th 774, 784 (2d Dist. 2014) expressly held that

“Evidence Code section 1 119 does not apply to disclosures made pursuant to and for the purpose

of complying with the Family Code’s statutory mandate.”

In addition to these protections, family law mediators and/or attorneys representing

clients in mediation are on the frontlines to defend against this sort of conduct. Mediators and

legal professionals are trained to be able to see the “red flags” of fraud and take steps to end the

mediation or otherwise expose fraudulent conduct before an unfair and fraudulent agreement is

completed.

SCMA therefore supports the current statutory scheme and strongly opposes the

limitations on family mediators and attorneys representing clients in mediation contained in

Resolution 09-03—2015.

We respectfully request the Committee on Resolutions recommend disapproval.

Very truly yours,

/

7

Joseph C. Markowr z, immediate past prestdent

Terri Breer

Wendy Forrester

09-04-2015 Page 1 of 4

RESOLUTION 09-04-2015 DIGEST Registered Domestic Partnerships: Conversion into Marriage Adds Family Code section 297.6 to allow registered domestic partners (RDPs) to convert their partnership to a marriage, with the effective date of marriage being the date of the RDP registration. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution adds Family Code section 297.6 to allow registered domestic partners (RDPs) to convert a partnership to a marriage, with the effective date of marriage being the date of the RDP registration. This resolution should be approved in principle because various federal benefits are contingent on the date of marriage, and because the option will properly compensate couples whose constitutional rights were violated due to past restrictions on marriage. Under the recent United States Supreme Court case, Obergefell v. Hodges (2015) 576 U.S. __, determining that same-sex couples have a constitutional right to marry, presumably the federal government will recognize these marriages even if they date back to a point before the decision. Under Family Code section 297.5, subdivision (a), RDPs have the same rights as spouses under California law. This protects rights in community property located in California, but not with respect to federal time-dependent benefits such as spousal social security (benefits arise only after 10 years of marriage), and spousal rights under ERISA retirement plans. Thus, even if RDPs marry, they cannot fully capture the benefits to which they would have been entitled had they been able to get marries on the date they entered into their RDP. The proposed legislation will solve this problem by, optionally at the request of the couple, making the effective date of marriage the date of the registration of the earlier RDP. (It might also be helpful to give formerly RDPs who have since married the option to also convert their previous RPD.) TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to add Family Code section 297.6 to read as follows: § 297.6 Registered domestic partners may apply to have their partnership converted into a 1 marriage. For purposes of determining the legal rights and responsibilities involving individuals 2 who had previously had a registered domestic partnership and are deemed married under the 3

09-04-2015 Page 2 of 4

provisions of this section, the date of the original registered domestic partnership is the legal date 4 of the marriage. 5

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bay Area Lawyers for Individual Freedom STATEMENT OF REASONS The Problem: Prior to June 28, 2013, same-sex couples were prohibited from marrying in California (other than during the four-plus month period before Proposition 8 was passed in 2008). While same-sex couples have been able to become registered domestic partners in California since 1999, registered domestic partnerships (RDPs) are not considered marriages for the purposes of Federal law. Various benefits are contingent on a date of marriage. In one example, an ERISA-governed retirement plan may incorporate a requirement that a couple be married for a period (e.g., at least a year) prior to the annuity starting date for a spouse to be entitled to the annuity. Further, denied the ability to legally marry, many same-sex couples that entered an RDP viewed their RDP as a marriage. However, under existing law, they must apply for a marriage license and go through the ceremonial requirements of a marriage. While some same-sex couples in a RDP may want to do so, others view this as unnecessary and duplicative. The Solution: This resolution would allow registered domestic partners to convert their partnership to a marriage, with the effective date of marriage being the date of the domestic partnership registration. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Denise Bergin, Weaver Austin Villeneuve & Sampson LLP, 555 12th St., Ste 1700, Oakland, CA 94607; 510-267-4142; dbergin@wavsip.com RESPONSIBLE FLOOR DELEGATE: Denise Bergin

09-04-2015 Page 3 of 4

SECTION COMMENTS TO RESOLUTION 09-04-2015 FAMILY LAW SECTION OF THE STATE BAR OF CALIFORNIA Disapprove

Rationale

The Executive Committee of the Family Law Section of the State Bar of California (FLEXCOM) disapproves this Resolution for a number of reasons. These are (in no particular order):

:

1. The Resolution does not explain/address how the Registered Domestic Partnership will be converted to a marriage. Some mechanism/form will be needed to ensure a) both parties desire this, and b) there is a valid record of this. 2. The Resolution does not take into consideration the potential conflict with Federal law, which did not recognize same-sex marriages until the June 2013 Supreme Court decision. 3. The Resolution does not appear to take into consideration that same sex marriage was illegal prior to June 2008, yet Registered Domestic Partnerships have been legal in California since 2000. 4. The Resolution also does not appear to take into consideration the Registered Domestic Partnerships entered into in the time period between the Proposition 8 vote in November of 2008 and the June 2013 Supreme Court decision. 5. The Resolution fails to address whether or not non-California Registered Domestic Partnerships (i.e. RDPs or civil unions entered into in other states) should be eligible for such a conversion. 6. The Resolution does not address the lack of the required solemnization process for a valid marriage. Because so many concerns exist that have not been addressed at all/adequately, FLEXCOM disapproves. The proponents of this Resolution may want to consider reworking this concept to address these and possibly other issues.

This position is only that of the FAMILY LAW SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California.

Disclaimer:

09-04-2015 Page 4 of 4

Membership in the FAMILY LAW SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

COUNTERARGUMENTS TO RESOLUTION 09-04-2015 SACRAMENTO COUNTY BAR ASSOCIATION DISAPPROVE: The resolution’s intent is appreciated, but the resolution, as written, does not address the following conditions:

(1) It does not explain, procedurally, how the Registered Domestic Partnership (RDP) will be converted to a marriage. A mechanism (form) will be needed to ensure both parties are willingly consenting to the conversion. It should conform, at a minimum, to the CA RDP registration requirements.

(2) It does not take into consideration the potential conflict with Federal law, which did not recognize same sex marriages until the June 2012 Supreme Court Decision.

(3) It does not take into consideration that same sex marriage was illegal prior to June 2008, yet RDP’s were legal since 2000. Converting an RDP entered into prior to June 2008 may not be appropriate given the illegality of pre-June 2008 same sex marriage. It also does not take into account RDP’s that were entered into the time period of the Prop 8 vote in 2008, and the June 2012 Supreme Court decision.

(4) It does not take into consideration whether or not non-CA RDP’s (i.e. RDP’s or civil unions entered into in other states) should be eligible for the conversion.

09-05-2015 Page 1 of 4

RESOLUTION 09-05-2015

DIGEST Family Law: Preliminary Declarations of Disclosure of Schedule of Assets and Debts Amends Family Code section 2104 to require that a Preliminary Declaration of Disclosure of Schedules of Assets and Debts must have all categories completed in the California Judicial Council form. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Family Code section 2104 to require that a Preliminary Declaration of Disclosure of Schedules of Assets and Debts have all categories completed in the California Judicial Council form. This resolution should be approved in principle because it will more readily clarify whether or not a party to a divorce or separation has disclosable assets and debts and provide a methodical checklist for the disclosing party. Family Code section 2104 requires parties to a dissolution, legal separation, or nullity action to file a “Preliminary Declaration of Disclosure,” (California Judicial Council Form FL-140), which identifies “with sufficient particularity, that a person of reasonable and ordinary intelligence can ascertain” a person’s assets, liabilities, percentage of ownership or obligation for each liability, a completed income and expense declaration, and all tax returns within the two years prior to the date the party served the declaration. (Fam. Code, § 2104.) The declarant is required to sign the forms under penalty of perjury that the information provided is true and correct. These forms are not filed with the trial court, but the party filing the declaration must file the proof of service of the Preliminary Declaration of Disclosure with the court. The Schedules of Assets and Debts, California Judicial Council Form FL-142, requires disclosures of assets and debts in the following categories: (1) real estate; (2) household furniture, furnishings, appliances; (3) jewelry, antiques, art, coin collections, etc.; (4) vehicles, boats, trailers; (5) savings accounts; (6) checking accounts; (7) credit union, other deposit accounts; (8) cash; (9) tax refund; (10) life insurance with cash surrender or loan value; (11) stocks, bonds, secured notes, mutual funds; (12) retirement and pensions; (13) profit-sharing, annuities, IRAs, deferred compensation; (14) accounts receivable and unsecured notes; (15) partnerships and other business interests; (16) other assets. (Cal. Jud.Council, Form FL-142). The form requests the party to identify whether the item is separate property, the date acquired, the current gross fair market value, and the amount of money owed or encumbrance. (Id.). If a category is left blank, it is unclear whether the declarant mistakenly omitted the category, does not have assets or liabilities corresponding to the category, or is intentionally omitting the category. A complete and accurate PDD is also important because the final disclosures may be waived. Requiring the declarant to specifically identify whether he or she has assets and/or liabilities corresponding to each category will eliminate the problem.

09-05-2015 Page 2 of 4

TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Family Code section 2104 to read as follows: §2104 (a) Except by court order for good cause, as provided in Section 2107, in the time period 1 set forth in subdivision (f), each party shall serve on the other party a preliminary declaration of 2 disclosure, executed under penalty of perjury on a form prescribed by the Judicial Council. The 3 commission of perjury on the preliminary declaration of disclosure may be grounds for setting 4 aside the judgment, or any part or parts thereof, pursuant to Chapter 10 (commencing with 5 Section 2120), in addition to any and all other remedies, civil or criminal, that otherwise are 6 available under law for the commission of perjury. The preliminary declaration of disclosure 7 shall include all tax returns filed by the declarant within the two years prior to the date that the 8 party served the declaration. 9

(b) The preliminary declaration of disclosure shall not be filed with the court, except on 10 court order. However, the parties shall file proof of service of the preliminary declaration of 11 disclosure with the court. 12

(c) The preliminary declaration of disclosure shall set forth with sufficient particularity, 13 that a person of reasonable and ordinary intelligence can ascertain, all of the following: 14

(d) The identity of all assets in which the declarant has or may have an interest and all 15 liabilities for which the declarant is or may be liable, regardless of the characterization of the 16 asset or liability as community, quasi-community, or separate. 17

(e) The declarant's percentage of ownership in each asset and percentage of obligation for 18 each liability where property is not solely owned by one or both of the parties. The preliminary 19 declaration may also set forth the declarant's characterization of each asset or liability. 20

(d) A declarant may amend his or her preliminary declaration of disclosure without leave 21 of the court. Proof of service of any amendment shall be filed with the court. 22

(e) Along with the preliminary declaration of disclosure, each party shall provide the 23 other party with a completed income and expense declaration unless an income and expense 24 declaration has already been provided and is current and valid. 25

(f) The petitioner shall serve the other party with the preliminary declaration of disclosure 26 either concurrently with the petition for dissolution, or within 60 days of filing the petition. The 27 respondent shall serve the other party with the preliminary declaration of disclosure either 28 concurrently with the response to the petition, or within 60 days of filing the response. The time 29 periods specified in this subdivision may be extended by written agreement of the parties or by 30 court order. 31

(g) A preliminary declaration of disclosure shall not be deemed to be properly completed 32 unless each and every box on the Scheduled of Assets and Debts is filled in. 33

(Proposed new language underlined; language to be deleted stricken) PROPONENT: The Los Angeles County Bar Association

09-05-2015 Page 3 of 4

STATEMENT OF REASONS The Problem: Current law makes mandatory in all Divorce and Legal Separation proceedings, the exchange of Preliminary Declarations of Disclosures. (“PDDs”). Among the required documents that must be exchanged within such PDDs are forms entitled “Schedule of Assets and Debts.” This form has various categories for each type of property that a person can own. By way of example, categories include but are not limited to “real property” “checking accounts” “retirement accounts,” etc. The purpose of the form is to ensure that when getting divorced, a spouse discloses to the other spouse all of the assets that he/she owns. Other information, such as the date the asset was acquired, the value of the asset and the spouse’s alleged characterization of the asset (community or separate or mixed) must also be provided. Despite the various categories which are pre-printed on the form, many practitioners tend to leave certain categories blank. This is either because they think that if there is no real property, for example, that the category does not need to have the word “none” or the figure “0” inserted. However, some practitioners and/or self-represented spouses may leave a blank in the form for the specific purpose of avoiding having to disclose a hidden asset that they do not want the other spouse to become aware of. As a result of this latter possibility, practitioners who receive such Schedules with blanks on them, must of necessity contact the attorney (or self-represented Party) who prepared the Schedule and request a new one with the form to be fully completed. This becomes a burdensome task which should not have to be undertaken. And, on occasion, certain practitioners( or self-represented Parties) actually refuse to remedy this defect and refuse to provide revised fully completed forms. The Solution: The proposed revision to the current statute would address this problem by specifically providing that in order to be in compliance with the law which requires that Preliminary Declarations of Disclosure be exchanged, that each and every form must be fully completed and filled out in all particulars. This will eliminate the need in most cases to protracted correspondence or even court hearings on this issue. IMPACT STATEMENT The proposed Resolution does not affect any other law, statute or Rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Avery M. Cooper, Esq., Cooper-Gordon LLP, 2530 Wilshire Blvd., Third Floor, Santa Monica, CA. 90403, 310-829-9918, averyc@cooper-gordon.com RESPONSIBLE FLOOR DELEGATE: Avery M. Cooper, Esq.

09-05-2015 Page 4 of 4

SECTION COMMENTS TO RESOLUTION 09-05-2015 FAMILY LAW SECTION OF THE STATE BAR OF CALIFORNIA Disapprove

Rationale

The Executive Committee of the Family Law Section of the State Bar of California (FLEXCOM) feels this Resolution would only increase litigation a) if the boxes were not checked, and b) more importantly, for requests to set aside judgments based on that failure. Remedies already exist to address a party’s failure to list an asset or debt on the disclosure so this is unnecessary.

:

Disclaimer:

This position is only that of the FAMILY LAW SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the FAMILY LAW SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

09-06-2015 Page 1 of 5

RESOLUTION 09-06-2015 DIGEST Juvenile Law: Allow Standing to Biological Fathers to Participate in Juvenile Dependency Cases Amends California Welfare and Institutions Code sections 290.1, 290.2, 302, 316.2, 361.2, and 361.5 to allow standing to biological fathers in their child’s juvenile dependency cases. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Welfare and Institutions Code sections 290.1, 290.2, 302, 316.2, 361.2, and 361.5 to allow standing to biological fathers in their child’s juvenile dependency cases. This resolution should be approved in principle as it ensures a parent’s fundamental due process right to notice and the opportunity to be heard in a dependency matter. In In re Wilford J. (2005) 131 Cal.App.4th 742, the court found that, “A parent's fundamental due process right to adequate notice and the opportunity to be heard in dependency matters involving potential deprivation of the parental interest has little, if any, value unless the parent is advised of the nature of the hearing giving rise to that opportunity, including what will be decided therein; only with adequate advisement can one choose to appear or not, to prepare or not, and to defend or not.” Currently, the law does not recognize what has become more common in the age of surrogacy – the rights of the biological father who may not be a stranger to the child but may nevertheless be denied notice. It should be noted that this amendment does not amend Welfare and Institutions Code section 291, which establishes who shall be given notice of the disposition of a hearing, so while a biological father may have standing, he would not receive notice of the disposition of the initial jurisdictional hearing. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Welfare and Institutions Code sections 290.1, 290.2, 302, 316.2, 361.2, and 361.5 to read as follows: §290.1 Duty to File Petition and Give Notice (a) Notice shall be given to the following persons 1 whose whereabouts are known or become known prior to the initial petition hearing: (1)The 2 mother or mothers, presumed, biological and alleged. (2) The father or fathers, presumed, 3 biological, and alleged. 4 5 §290.2 6

09-06-2015 Page 2 of 5

Issuance and Service of Notice.(a) Notice shall be given to the following persons whose 7 address is known or becomes known prior to the initial petition hearing: (1) The mother or 8 mothers, presumed, biological and alleged. (2) The father or fathers, presumed, biological, and 9 alleged. 10 11 §302 12 Assumption of jurisdiction regardless of custody by one or both all parents; notice to 13 parents; report of social worker; custodial rights. (b) Unless parental rights have been terminated, 14 both all parents shall be notified of all proceedings involving the child. The court must make 15 findings on the record that a parentage inquiry and all required notice was performed pursuant to 16 section 316.2. 17 (c) In any case where the social worker.... 18 19 §316.2: Presumed or alleged fathers parents; inquiry by court; notice; termination of rights; 20 jurisdiction 21 (a) At the detention hearing, or as soon thereafter as is practicable, the court shall inquire 22 of the mother and any other appropriate person as to the identity and address of all presumed, 23 biological, or alleged fathers parents. The presence at the hearing of a man claiming to be the 24 father shall not relieve the court of its duty of inquiry. The inquiry shall include at least all of the 25 following, as the court deems appropriate: 26 (1) Whether a judgment of paternity already exists. (2) Whether the mother was married 27 or believed she was married at the time of conception of the child or at any time thereafter. (3) 28 Whether the mother was cohabiting with a man another parent of the child at the time of 29 conception or birth of the child. (4) Whether the mother has received support payments or 30 promises of support with respect to the child or in connection with her pregnancy. (5) Whether 31 any man parent has formally or informally acknowledged or declared his possible paternity 32 parentage of the child, including by signing a voluntary declaration of paternity. (6) Whether 33 paternity tests have been administered and the results, if any. (7) Whether any parenting adult 34 otherwise qualifies as a presumed father parent pursuant to Section 7611, or any other provision, 35 of the Family Code. (8) The name of any parenting adult identified through this inquiry. (9) The 36 contact information, including phone number, email address and physical address of any 37 parenting adult identified through this inquiry.(10) If information pursuant to (a)(9) is not 38 available, the name and contact information for any grandparent or other family friend or relative 39 that might have access to this information. 40 (b) If, after the court inquiry, one or more men adults are identified as an alleged father 41 parent, each alleged father parent shall be provided notice at his or her last and usual place of 42 abode or through information gathered pursuant to (a)(9) and (10) by certified mail return receipt 43 requested alleging that he or she is or could be the father parent of the child. The notice shall 44 state that the child is the subject of proceedings under Section 300 and that the proceedings could 45 result in the termination of parental rights and adoption of the child. Judicial Council form 46 Paternity--‐Waiver of Rights (JV--‐505) shall be included with the notice. 47 Nothing in this section shall preclude a court from terminating a father’s parent’s parental 48 rights even if an action has been filed under Section 7630 or 7631 of the Family Code.(c)The 49 court may determine that the failure of an alleged father parent to return the certified mail receipt 50 is not good cause to continue a hearing pursuant to Section 355, 358, 360, 366.21, or 366.22. 51

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(d) If an alleged father parent appears in the dependency action and files an action under Section 52 7630 or 7631 of the Family Code, the court shall determine if he is the father a presumed or 53 biological parent. 54 55 §361.2 56 (a) When a court orders removal of a child pursuant to Section 361, the court shall first 57 determine whether there is a presumed or biological parent of the child, with whom the child was 58 not residing at the time that the events or conditions arose that brought the child within the 59 provisions of Section 300, who desires to assume custody of the child. If that parent requests 60 custody, the court shall place the child with the parent unless it finds that placement with that 61 parent would be detrimental to the safety, protection or physical or emotional well--‐being of the 62 child.... 63 (b)(3) Order that the parent assume custody subject to the supervision of the juvenile 64 court. In that case the court may order that reunification services be provided to the parent or 65 guardian from whom the child is being removed, or the court may order that services be provided 66 solely to the parent who is assuming physical custody in order to allow that that parent to retain 67 later custody without court supervision, or that services be provided to both all parents, in which 68 case the court shall determine, at review hearings held pursuant to Section 366, which parent, if 69 either any shall have custody of the child. 70 (c) The court shall make a finding either in writing or on the record of the basis for its 71 determination under subdivisions (a) and (b). The court shall not make findings pursuant to 72 Section 361 until noticing of all alleged parents has been completed and parentage 73 determinations have been resolved, pursuant to section 316.2. 74 75 §361.5 76 (a) Except as provided in subdivision (b), or when the parent has voluntarily relinquished 77 the child and the relinquishment has been filed with the State Department of Social Services, or 78 upon the establishment of an order of guardianship pursuant to Section 360, or when a court 79 adjudicates a petition under Section 329 to modify the court’s jurisdiction from delinquency 80 jurisdiction to dependency jurisdiction pursuant to subparagraph (A) of paragraph (2) of 81 subdivision (b) of Section 607.2 and the parents or guardian of the ward have had reunification 82 services terminated under the delinquency jurisdiction, whenever a child is removed from a 83 parent’s or guardian’s custody, the juvenile court shall order the social worker to provide child 84 welfare services to the child and the child’s mother and, statutorily presumed parent, and 85 biological father. If the child has been removed from a legal guardian’s custody, then the court 86 shall order reunification services to the guardians. Upon a finding and declaration of paternity by 87 the juvenile court or proof of a prior declaration of paternity by any court of competent 88 jurisdiction, the juvenile court may order services for the child and the biological father, if the 89 court determines that the services will benefit the child. 90 (remainder of section remains unchanged) 91

(Proposed new language underlined; language to be deleted stricken) PROPONENT: The Bar Association of San Francisco

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STATEMENT OF REASONS The Problem: Existing law recognizes many types of fathers: alleged fathers who merely have the right to elevate their paternity status to that of either biological father or presumed father. Only presumed fathers have the right to be evaluated for custody and visitation. Only presumed fathers have the right to receive reunification services to address the issues that led to the child be removed from parental custody in order to prove to the court that they can provide a safe and appropriate home for the child. Existing law was recently amended to allow for three parents in appropriate cases. This change to Family Code Section 7612(c) allows the dependency court to keep both a psychological father and a biological father involved in a child’s life. The courts have split over many issues regarding how to achieve presumed father status. Previously, a biological father could obtain presumed father status by signing a voluntary declaration of paternity declaring to be the biological father, which served as equivalent to a judgement of paternity. Now, case law has questioned whether this is still good law. Moreover, recent case law has declared that a judgement of paternity for the purposes of Child Support collections should not be considered a judgement of paternity for dependency purposes. Courts need a unified and simple standard to apply so that children can have a fair and unbiased determination of parentage. The Solution: Biological fathers should have the same rights as presumed fathers to request a determination by the court for custody as a non-custodial parent. Biological fathers should have access to reunification services. Biological mothers who are accused of abuse and neglect are given reunification services as a matter of law. This resolution grants these same rights to biological fathers. IMPACT STATEMENT This resolution does not impact any other law, statute, or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Jill McInerney, 459 Fulton Street, Suite 208, San Francisco, CA 94102; (415) 310-6048, jill@jillmcinerneylaw.com RESPONSIBLE FLOOR DELEGATE: Jill McInerney

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SECTION COMMENTS TO RESOLUTION 09-06-2015 FAMILY LAW SECTION OF THE STATE BAR OF CALIFORNIA Disapprove

The Executive Committee of the Family Law Section of the State Bar of California (FLEXCOM) disapproves this Resolution. Existing law already gives fathers standing for all these services. Current law provides that presumed parents have entitlement based on their proven/historical involvement with the child. Biological fathers who do not also qualify as “presumed” have to prove reunification would benefit the child often/usually because of their lack of involvement. We feel the different treatment has a well-reasoned basis.

Rationale:

In addition, the proposed amendment to Welfare and Institutions Code sections 361.2(c) could lead to delays and continuances that are detrimental to the child’s overall needs. We also note the concern that this Resolution, in its attempt to use gender-neutral language, goes too far. There is no such thing as an “alleged” biological mother and there should be no implication that there is any such thing.

Disclaimer: This position is only that of the FAMILY LAW SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the FAMILY LAW SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

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RESOLUTION 09-07-2015 DIGEST Fiduciary Duties: Waiver of Preliminary Declaration of Disclosure Amends Family Code section 2104 to make an exchange of preliminary declarations of disclosure required only upon the request of a party. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Family Code section 2104 to make an exchange of preliminary declarations of disclosure required only upon the request of a party. This resolution should be disapproved because it would undermine the goal of ensuring that both parties to a dissolution have full information about the community estate and the other party’s income. Over the past several decades California family law has evolved to strengthen spouses’ fiduciary duties to each other. These duties require full disclosure of income, assets, and debts. It is the clear public policy of this State to ensure that when spouses part, the community property is equally divided, and fair support awards are issued. (Fam. Code, § 2100.) This proposal strips the teeth from the fiduciary duties, because the stronger spouse would often be able to convince the weaker spouse to waive the disclosures. The waiver would by definition be uninformed and thereby not voluntarily, because it could be made before any financial information had been exchanged. This resolution conflicts also conflicts with Family Code section 2105, which allows the parties to waive the requirement to complete a final disclosure because the waiver requires service of the preliminary declarations of disclosure (“PDDs”). (Fam. Code, § 2105, subd. (d)(1).) While it may take the parties time to assemble their PDDs, overall this exchange and the spousal duty of disclosure saves the time and attorney’s fees that would be involved in formal discovery. Family Code section 2330.5 already provides that PDDs are not required in cases where the petition makes no demand for money, property, costs, or attorney's fees and the judgment is entered by default. Pending Assembly Bill no. 1519 (Reg. Sess. 2015-2016), the Assembly Judiciary Committee omnibus bill for 2015)), amends Family Code section 2104, subdivision (f), to clarify that the deadline to serve a PDD applies to legal separation actions. Assembly Bill no. 340 (Reg. Sess. 2015-2016, chaptered July 2, 2015) amended Family Code section 2103 et seq., to provide that service of the PDD is not required in cases where service was by publication and the respondent has defaulted.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Family Code section 2104 to read as follows: §2104 (a) Except by court order for good cause, as provided in Section 2107, in the time 1 period set forth in subdivision (f), upon request, each party shall serve on the other party a 2 preliminary declaration of disclosure, executed under penalty of perjury on a form prescribed 3 by the Judicial Council. The commission of perjury on the preliminary declaration of 4 disclosure may be grounds for setting aside the judgment, or any part or parts thereof, pursuant 5 to Chapter 10 (commencing with Section 2120), in addition to any and all other remedies, 6 civil or criminal, that otherwise are available under law for the commission of perjury. The 7 preliminary declaration of disclosure shall include all tax returns filed by the declarant within 8 the two years prior to the date that the party served the declaration. 9 (b) The preliminary declaration of disclosure shall not be filed with the court, except 10 on court order. However, the parties shall file proof of service of the preliminary declaration 11 of disclosure with the court. 12 (c) The preliminary declaration of disclosure shall set forth with sufficient particularity, 13 that a person of reasonable and ordinary intelligence can ascertain, all of the following: 14 (1) The identity of all assets in which the declarant has or may have an interest and all 15 liabilities for which the declarant is or may be liable, regardless of the characterization of the 16 asset or liability as community, quasi-community, or separate. 17 (2) The declarant's percentage of ownership in each asset and percentage of obligation 18 for each liability where property is not solely owned by one or both of the parties. The 19 preliminary declaration may also set forth the declarant's characterization of each asset or 20 liability. 21 (d) A declarant may amend his or her preliminary declaration of disclosure without 22 leave of the court. Proof of service of any amendment shall be filed with the court. 23 (e) Along with the preliminary declaration of disclosure, each party shall provide the 24 other party with a completed income and expense declaration unless an income and expense 25 declaration has already been provided and is current and valid. 26 (f) The petitioner shall serve the other party with the preliminary declaration of 27 disclosure ei ther concurrently with the peti t ion for dissolution, or within 60 days of 28 being requested filing the petition. The respondent shall serve the other party with the 29 preliminary declaration of disclosure either concurrently with the response to the petition, or 30 within 60 days of being requested f i l i n g t h e r e s p o n s e . The time periods specified in this 31 subdivision may be extended by written agreement of the parties or by court order. 32

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County

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STATEMENT OF REASONS The Problem: Currently parties are required to exchange preliminary declarations of disclosure. Many parties are self-represented and do not timely exchange these documents. Often cases are delayed and continued as Judgment cannot be entered without this exchange. Many parties are willing to waive preliminary declarations of disclosure or they are confident with their settlement, have little to disclose and/or are not good with paperwork. This further burdens an already burdened Facilitator’s office. The Solution: This resolution makes an exchange of preliminary declarations of disclosure optional. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Jeffrey Lacy, 900 Pier View Way, Oceanside, CA, 92054; telephone (760) 722-1234, email jeffrey.lacy@glkohlaw.com RESPONSIBLE FLOOR DELEGATE: Jeffrey Lacy, Esq.

SECTION COMMENTS TO RESOLUTION 09-07-2015 FAMILY LAW SECTION OF THE STATE BAR OF CALIFORNIA Disapprove Rationale: The Executive Committee of the Family Law Section of the State Bar of California (FLEXCOM) disapproves this Resolution. There are already remedies available and procedures to deal with the recalcitrant opposing party who will not serve his/her PDD. Undermining the whole requirement to deal with these cases is too overbroad a step. Disclaimer: This position is only that of the FAMILY LAW SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California.

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Membership in the FAMILY LAW SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

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RESOLUTION 09-08-2015 DIGEST

Amends Family Code section 3027 to require family courts to notify the local child welfare agency regarding findings of child abuse/neglect, and amends Penal Code section 11169 to require the agency to report the case to the Department of Justice (DOJ).

Family Law: Requires Family Law Findings of Child Abuse/Neglect to be Reported to the DOJ

RESOLUTIONS COMMITTEE RECOMMENDATIONS DISAPPROVE HistoryNo similar resolutions found.

:

ReasonsThis resolution amends Family Code section 3027 to require family courts to notify the local child welfare agency regarding findings of child abuse/neglect, and amends Penal Code section 11169 to require the agency to report the case to the Department of Justice (DOJ). This resolution should be disapproved because there is already a statutory means available for courts to refer the case to the appropriate local child welfare agency.

:

Family Code section 3027, subdivision (b) holds in part, “[T]he court may request that the local child welfare service agency conduct an investigation of the allegations pursuant to section 328 of the Welfare and Institutions Code.” The current system keeps the requirement to report to the DOJ with the local child welfare agency, it does not expand the parties who can report nor does it create an additional burden on the court. Furthermore, it is likely that the court would rely in any evidentiary hearing on a report produced by the local child welfare agency. A significant concern regarding the proposal is the admissibility and level of proof generally accepted in the family court because the court is allowed wide discretion in the evidence that may be submitted, which often contains hearsay statements or other inadmissible evidence. The level of proof in a family court is not beyond a reasonable doubt but likely lower than preponderance of the evidence. This should not be the standard for making a referral to the DOJ. The family court is trying to determine what is in the child’s best interest, not necessarily if abuse or neglect actually occurred. Lastly, the burden of reporting to the DOJ should lie with the professionals who have the most experience in determining child abuse, the local child welfare professional, not the court. This resolution also seeks to amend Penal Code section 11169 to require certain designated agencies to forward any report prepared under Family Code section 3027, subdivision (c). The agency is required to forward this report to the DOJ if a court makes a finding under Family Code section 3037 subdivision (c) even if it does not reach its own standards for reporting to the DOJ. This requirement creates a contradiction in standards for designated agencies.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend Family Code section 3027 and Penal Code section 11169.to read as follows: §3027 (a) If allegations of child abuse, including child sexual abuse, are made during a child 1 custody proceeding and the court has concerns regarding the child's safety, the court may take 2 any reasonable, temporary steps as the court, in its discretion, deems appropriate under the 3 circumstances to protect the child's safety until an investigation can be completed. Nothing in 4 this section shall affect the applicability of Section 16504 or 16506 of the Welfare and 5 Institutions Code. 6 (b) If allegations of child abuse, including child sexual abuse, are made during a child 7 custody proceeding, the court may request that the local child welfare services agency conduct 8 an investigation of the allegations pursuant to Section 328 of the Welfare and Institutions Code. 9 Upon completion of the investigation, the agency shall report its findings to the court. 10

14

(c) Family court judicial officers who make a finding of child abuse or neglect following 11 an evidentiary hearing shall refer that case to the local child welfare agency for entry into the 12 Child Abuse Central Index, pursuant to Penal Code section 11169. 13

§11169 15 (a) An agency specified in Section 11165.9 shall forward to the Department of Justice a 16 report in writing of every case it investigates of known or suspected child abuse or severe neglect 17 that is determined to be substantiated, and any case it is referred pursuant to Family Code section 18 3027(c), other than cases coming within subdivision (b) of Section 11165.2. An agency shall not 19 forward a report to the Department of Justice unless it has conducted an active investigation and 20 determined that the report is substantiated, as defined in Section 11165.12 or unless a Family 21 Court judicial officer has made a finding of child abuse or neglect

(b) On and after January 1, 2012, a police department or sheriff's department specified in 28 Section 11165.9 shall no longer forward to the Department of Justice a report in writing of any 29 case it investigates of known or suspected child abuse or severe neglect. 30

. If a report has previously 22 been filed which subsequently proves to be not substantiated, the Department of Justice shall be 23 notified in writing of that fact and shall not retain the report. The reports required by this section 24 shall be in a form approved by the Department of Justice and may be sent by fax or electronic 25 transmission. An agency specified in Section 11165.9 receiving a written report from another 26 agency specified in Section 11165.9 shall not send that report to the Department of Justice. 27

(c) At the time an agency specified in Section 11165.9 forwards a report in writing to the 31 Department of Justice pursuant to subdivision (a), the agency shall also notify in writing the 32 known or suspected child abuser that he or she has been reported to the Child Abuse Central 33 Index (CACI).The notice required by this section shall be in a form approved by the Department 34 of Justice. The requirements of this subdivision shall apply with respect to reports forwarded to 35 the department on or after the date on which this subdivision becomes operative. 36 (d) Subject to subdivision (e), any person who is listed on the CACI has the right to a 37 hearing before the agency that requested his or her inclusion in the CACI to challenge his or her 38 listing on the CACI. The hearing shall satisfy due process requirements. It is the intent of the 39 Legislature that the hearing provided for by this subdivision shall not be construed to be 40

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inconsistent with hearing proceedings available to persons who have been listed on the CACI 41 prior to the enactment of the act that added this subdivision. 42 (e) A hearing requested pursuant to subdivision (d) shall be denied when a court of 43 competent jurisdiction has determined that suspected child abuse or neglect has occurred, or 44 when the allegation of child abuse or neglect resulting in the referral to the CACI is pending 45 before the court. A person who is listed on the CACI and has been denied a hearing pursuant to 46 this subdivision has a right to a hearing pursuant to subdivision (d) only if the court's jurisdiction 47 has terminated, the court has not made a finding concerning whether the suspected child abuse or 48 neglect was substantiated, and a hearing has not previously been provided to the listed person 49 pursuant to subdivision (d). 50 (f) Any person listed in the CACI who has reached 100 years of age shall have his or her 51 listing removed from the CACI. 52 (g) Any person listed in the CACI as of January 1, 2013, who was listed prior to reaching 53 18 years of age, and who is listed once in CACI with no subsequent listings, shall be removed 54 from the CACI 10 years from the date of the incident resulting in the CACI listing. 55 (h) If, after a hearing pursuant to subdivision (d) or a court proceeding described in 56 subdivision (e), it is determined the person' s CACI listing was based on a report that was not 57 substantiated, the agency shall notify the Department of Justice of that result and the department 58 shall remove that person's name from the CACI. 59 (I) Agencies, including police departments and sheriff's departments, shall retain child 60 abuse or neglect investigative reports that result or resulted in a report filed with the Department 61 of Justice pursuant to subdivision (a) for the same period of time that the information is required 62 to be maintained on the CACI pursuant to this section and subdivision (a) of Section 11170. 63 Nothing in this section precludes an agency from retaining the reports for a longer period of time 64 if required by law. 65 (j) The immunity provisions of Section 11172 shall not apply to the submission of a 66 report by an agency pursuant to this section. However, nothing in this section shall be construed 67 to alter or diminish any other immunity provisions of state or federal law. 68

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Sacramento County Bar Association STATEMENT OF REASONS The Problem

: The current system only requires a social worker’s substantiated findings of child abuse and/or neglect to be referred to the California State Department of Justice (DOJ) for entry into the Child Abuse Central Index (CACI) and does not permit a family law court judicial officer’s findings substantiating abuse and/or neglect, after an evidentiary hearing, to be entered into CACI.

DOJ maintains CACI to help track persons who have had findings of child abuse and/or neglect made against them. CACI is used to assist law enforcement investigations and to screen applicants for certain professional licenses, jobs, or child placements/adoptions. Perpetrators of child abuse and/or neglect can only be referred to the DOJ for entry into CACI by local child welfare agencies or law enforcement. However, when a family law judicial officer makes a

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substantiated finding, after an evidentiary hearing with more restrictive evidentiary procedures, there is no mandatory requirement that this information be reported to the DOJ for entry into CACI. This proposal does not

This proposal also as currently authored includes a retroactivity provision that does not put the onus on the courts to locate all prior substantiated cases, however, if there is a more recent case that has been substantiated within the last five years, with a noticed motion by a parent or guardian, the Court shall then refer the finding to Child Welfare Services for entry into CACI.

place any burden on child welfare services other than filling out a one page form, i.e. form BCIA 8583. It is imperative that the individuals reviewing this legislation realize that there would be no further need for an investigation of the abuse and/or neglect, as by the time the local child welfare agency receives this referral from the family court judicial officer the findings have already been substantiated under a greater scrutiny in family law courts.

This proposal does not interfere with superiority of jurisdiction since by the time a family law court substantiates a finding of child abuse and/or neglect, child welfare services has either opted to not file a dependency petition and/or has determined said allegations to be inconclusive and/or unfounded. This proposal further does not place judicial officers in the position of being mandated reporters. A mandated reporter is required to report any known or suspected instances of child abuse and/or neglect to the county Child Welfare Services or to local law enforcement for the purposes of investigation. Here, a judicial officer has already determined that the abuse took place and is simply required to refer the finding for entry into CACI not another investigation. The Solution

: This proposal would (1) amend Family Code section 3027 to require family courts to notify their local child welfare agency when the court has substantiated allegations of child abuse and/or neglect, after an evidentiary hearing, and (2) require the child welfare agency to refer the case to the DOJ for entry into CACI.

IMPACT STATEMENT This resolution does not affect any other law, statute or rule not mentioned herein. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Tiffany L. Andrews, CWLS, 6611 Folsom Auburn Rd., Suite H, Folsom CA 95630, voice (707) 592-9603 or (916) 790-8440, fax (916) 988-8440, email tandrews@tlalawoffice.com RESPONSIBLE FLOOR DELEGATE: Tiffany L. Andrews

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SECTION COMMENTS TO RESOLUTION 09-08-2015

FAMILY LAW SECTION OF THE STATE BAR OF CALIFORNIA Disapprove Rationale: The Executive Committee of the Family Law Section of the State Bar of California (FLEXCOM) disapproves this Resolution. There are a number of concerns with this Resolution as written. These include but are not limited to, the following: 1. This proposal will create too great a burden on an already overloaded court to bear; 2. Existing law (Penal Code) currently defines “child abuse” in a number of different ways, one of which must be satisfied to substantiate a referral. The Family Court is not bound by the Penal Code definition under this Resolution. This could result in a Family Court “substantiating” a report that does not satisfy the current legal basis for a referral to be sent to the Department of Justice for the CAIC Index; 3. This Resolution undermines the statutory anonymity of reports to CPS/Child Abuse Registry (CAR) and removes discretion of the court; 4. Parties whose names are going to be submitted to CAR now have the right to an administrative hearing before the names go in. This Resolution eliminates that in a family court referral, drawing the Judge into the decision as to submission or removal. Disclaimer: This position is only that of the FAMILY LAW SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the FAMILY LAW SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

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RESOLUTION 09-09-2015 DIGEST Family Law: Service of Motion After Entry of Bifurcation Amends Family Code section 215 to clarify that motions filed after entry of a bifurcated judgment of dissolution should be served on counsel of record and not the party directly. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Family Code section 215 to clarify that motions filed after entry of a bifurcated judgment of dissolution should be served on the counsel of record and not the party directly. This resolution should be approved in principle because a bifurcated entry of judgment in a dissolution matter often resolves just the marital status of the parties but no other issues, restoring the parties to the status of “single,” while preserving jurisdiction to the court to resolve all remaining issues. A bifurcated judgment of dissolution is often entered earlier in a case than any other orders dissolving property or determining support or custody issues. Parties most often request a bifurcated judgment of dissolution in order to remarry or for tax considerations, but a bifurcated judgment of dissolution does not resolve all issues in the case. Under the current wording of this section, any motions entered after a bifurcated judgment for dissolution would have to be served personally on the non-moving party even though that party remains represented. Service on the non-moving party would therefore only increase costs and may cause some motions to “fall through the cracks” in that the parties may not notify counsel of receipt of these time sensitive documents in a timely manner, if counsel is notified at all. It is not uncommon to also have a partial judgment resolving some issues, but reserving jurisdiction to the court of other issues. Additional clarification that any motion filed after a partial judgment also should be served on counsel would also be helpful. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Family Code section 215 to read as follows: §215 (a) Except as provided in subdivisions (b) and (c), after entry of a judgment of dissolution 1 of marriage, nullity of marriage, legal separation of the parties, or paternity, or after a permanent 2 order in any other proceeding in which there was at issue the visitation, custody, or support of a 3 child, no modification of the judgment or order, and no subsequent order in the proceedings, is 4 valid unless any prior notice otherwise required to be given to a party to the proceeding is served, 5

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in the same manner as the notice is otherwise permitted by law to be served, upon the party. For 6 the purposes of this section, service upon the attorney of record is not sufficient. 7 (b) A postjudgment motion to modify a custody, visitation, or child support order may be 8 served on the other party or parties by first-class mail or airmail, postage prepaid, to the persons 9 to be served. For any party served by mail, the proof of service must include an address 10 verification. 11 (c) This section does not apply to a bifurcated judgment of dissolution under Family 12 Code section 2337. 13

(Proposed new language underlined; language to be deleted stricken) PROPONENT: The Bar Association of San Francisco STATEMENT OF REASONS The Problem: Family courts have interpreted section 215 to require service to a party and not his or her attorney when a case has been bifurcated and an early judgment of dissolution entered, reserving jurisdiction over the other issues presented in the case. This is because the technical reading of section 215 requires that. However, a bifurcated judgment of dissolution resolves just one aspect of the case, and the matter still must proceed to a final judgment on all issues (property, support, custody, etc.). A technical reading of Family Code section 215 leads to unintended results which create complications for litigants. The Solution: This resolution clarifies that the provisions of Family Code section 215 do not apply to bifurcated judgments. IMPACT STATEMENT This resolution does not affect any other statute, rule or law. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Michelene Insalaco, 101 Spear Street, Suite 1640, San Francisco CA 94105, (415) 357-5050, MI@Sucherman-Insalaco.com RESPONSIBLE FLOOR DELEGATE: Michelene Insalaco

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SECTION COMMENTS TO RESOLUTION 09-09-2015 FAMILY LAW SECTION OF THE STATE BAR OF CALIFORNIA Approve Rationale: The Executive Committee of the Family Law Section of the State Bar of California (FLEXCOM) approves this Resolution as being a reasonable and practical way to deal with the underlying issue. Disclaimer: This position is only that of the FAMILY LAW SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the FAMILY LAW SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

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RESOLUTION 10-01-2015

DIGEST Sex Offender Registration - Registration of Conservatees Amends multiple statutes to require conservators to register conservatees subject to mandatory sex offender registration. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends multiple statutes to require conservators to register conservatees subject to mandatory sex offender registration. The resolution should be disapproved because adequate protections for conservatee registrants already exist, and the resolution would impose the threat of criminal sanction for failure to register on the conservator, even though the conservator is not a sex offender. This resolution attempts to address the unfairness of subjecting conservatees to criminal prosecution for failure failure to register as sex offenders, given that conservatees have been adjudged to lack the capacity to make certain decisions related to their daily life. However, the law already appears to protect such conservatees. Only “willful” failure to register is criminally sanctionable. “Willfulness,” in this context, requires actual knowledge of the duty to register. (People v. Garcia (2001) 25 Cal.4th 744, 752) Although a jury may infer knowledge from notice (ibid.), “the willfulness element of the offense may be negated by evidence that an involuntary condition—physical or mental, temporary or permanent—deprived a defendant of actual knowledge of his or her duty to register.” (People v. Sorden (2005) 36 Cal.4th 65, 69.) Willfulness also requires that the prohibited act or omission occur intentionally. (People v. Johnson (1998) 67 Cal.App.4th 67, 72.) In the analogous context of willful failure to timely register for probation, a “willful” failure to act has been construed to require the capacity to perform the act. (People v. Galvan (2007) 155 Cal.App.4th 978, 984.) Thus, conservatees charged with failure to register may defend based on lack of knowledge caused by their conditions, or based on inability to comply with the registration requirement. Assuming that the existing protections for conservatees are inadequate, this resolution would more clearly protect their rights. The resolution goes too far, however, in placing the burden of registration on the conservator, because a conservator with actual knowledge of the conservatee’s status could be subject to criminal prosecution for any failure to register, despite not having committed a registerable offense. If the goal is merely to impose a duty on conservators to register their conservatees, a better course might be to add conservators to Penal Code section 290.017, which requires certain third parties to provide registration information regarding sex offenders.

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TEXT OF RESOLUTION RESOLVED, that the Conference of California Bar Associations recommends that legislation be sponsored to amend California Penal Code section 290, 290.005 and California Probate Code section 2351 and 2351.5. §290 (a) Sections 290 to 290.024, inclusive, shall be known and may be cited as the Sex 1 

Offender Registration Act. All references to "the Act" in those sections are to the Sex Offender 2 

Registration Act. 3 

(b) Every person described in subdivision (c), for the rest of his or her life while residing 4 

in California, or while attending school or working in California, as described in Sections 5 

290.002 and 290.01, shall be required to register with the chief of police of the city in which he 6 

or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or 7 

city that has no police department, and, additionally, with the chief of police of a campus of the 8 

University of California, the California State 9 

University, or community college if he or she is residing upon the campus or in any of its 10 

facilities, within five working days of coming into, or changing his or her residence within, any 11 

city, county, or city and county, or campus in which he or she temporarily resides, and shall be 12 

required to register thereafter in accordance with the Act. 13 

(c) The following persons shall be required to register: 14 

Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this 15 

state or in any federal or military court of a violation of Section 187 committed in the 16 

perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 17 

288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 18 

289, Section 220, except assault to commit mayhem, subdivision (b) and (c) of Section 236.1, 19 

Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, paragraph (1) 20 

of subdivision (a) of Section 262 involving the use of force or violence for which the person is 21 

sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, 22 

subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 23 

288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 24 

311.11, or 647.6, former Section 647a, subdivision (c) of Section 653f, subdivision 1 or 2 of 25 

Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony 26 

violation of Section 288.2; any statutory predecessor that includes all elements of one of the 27 

above-mentioned offenses; or any person who since that date has been or is hereafter convicted 28 

of the attempt or conspiracy to commit any of the above-mentioned offenses. 29 

(d) In a conservatorship of the person or a limited conservatorship of the person, as 30 

described in Section 1801(a) or (d) of the Probate Code, the responsibility to register as 31 

described in subsection (b) shall be with the conservator. If the conservatorship of the person or 32 

the limited conservatorship of the person is terminated and the conservatee regains his or her 33 

rights, the responsibility to register reverts to the former conservatee. 34 

35 

§290.005 36 

The following persons shall register in accordance with the Act: 37 

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(a) Except as provided in subdivision (c) or (d), any person who, since July 1, 1944, has 38 

been, or is hereafter convicted in any other court, including any state, federal, or military court, 39 

of any offense that, if committed or attempted in this state, based on the elements of the 40 

convicted offense or facts admitted by the person or found true by the trier of fact or stipulated 41 

facts in the record of military proceedings, would have been punishable as one or more of the 42 

offenses described in subdivision (c) of Section 290, including offenses in which the person was 43 

a principal, as defined in Section 31. 44 

(b) Any person ordered by any other court, including any state, federal, or military court, 45 

to register as a sex offender for any offense, if the court found at the time of conviction or 46 

sentencing that the person committed the offense as a result of sexual compulsion or for purposes 47 

of sexual gratification. 48 

(c) Except as provided in subdivision (d), any person who would be required to register 49 

while residing in the state of conviction for a sex offense committed in that state. 50 

(d) Notwithstanding any other law, a person convicted in another state of an offense 51 

similar to one of the following offenses who is required to register in the state of conviction shall 52 

not be required to register in California unless the out-of-state offense, based on the elements of 53 

the conviction offense or proven or stipulated facts in the record of conviction, contains all of the 54 

elements of a registerable California offense described in subdivision (c) of Section 290: 55 

(1) Indecent exposure, pursuant to Section 314. 56 

(2) Unlawful sexual intercourse, pursuant to Section 261.5. 57 

(3) Incest, pursuant to Section 285. 58 

(4) Sodomy, pursuant to Section 286, or oral copulation, pursuant to Section 288a, 59 

provided that the offender notifies the Department of Justice that the sodomy or oral copulation 60 

conviction was for conduct between consenting adults, as described in Section 290.019, and the 61 

department is able, upon the exercise of reasonable diligence, to verify that fact. 62 

(e) If the person described in Penal Code Section 290 is a conservatee of a 63 

conservatorship of the person or a limited conservatorship of the person or a conservatorship of 64 

the person or limited conservatorship of the person as described in Section 1801 of the Probate 65 

Code is later granted over the person described in Penal Code Section 290, the conservator of the 66 

person shall comply with registration as mandated in California Penal Code Section 290(b). 67 

68 

§2351 69 

(a) Subject to subdivision (b), the guardian or conservator, but not a limited conservator, 70 

has the care, custody, and control of, and has charge of the education of, the ward or conservatee. 71 

This control shall not extend to personal rights retained by the conservatee, including, but not 72 

limited to, the right to receive visitors, telephone calls, and personal mail, unless specifically 73 

limited by court order. 74 

(b) Where the court determines that it is appropriate in the circumstances of the particular 75 

conservatee, the court, in its discretion, may limit the powers and duties that the conservator 76 

would otherwise have under subdivision (a) by an order stating either of the following: 77 

(1) The specific powers that the conservator does not have with respect to the 78 

conservatee's person and reserving the powers so specified to the conservatee. 79 

(2) The specific powers and duties the conservator has with respect to the conservatee's 80 

person and reserving to the conservatee all other rights with respect to the conservatee's person 81 

that the conservator otherwise would have under subdivision (a). 82 

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(c) An order under this section (1) may be included in the order appointing a conservator 83 

of the person or (2) may be made, modified, or revoked upon a petition subsequently filed, notice 84 

of the hearing on the petition having been given for the period and in the manner provided in 85 

Chapter 3 (commencing with Section 1460) of Part 1. 86 

(d) The guardian or conservator, in exercising his or her powers, may not hire or refer any 87 

business to an entity in which he or she has a financial interest except upon authorization of the 88 

court. Prior to authorization from the court, the guardian or conservator shall disclose to the court 89 

in writing his or her financial interest in the entity. For the purposes of this subdivision, 90 

"financial interest" shall mean (1) an ownership interest in a sole proprietorship, a partnership, or 91 

a closely held corporation, or (2) an ownership interest of greater than 1 percent of the 92 

outstanding shares in a publicly traded corporation, or (3) being an officer or a director of a 93 

corporation. This subdivision shall apply only to conservators and guardians required to register 94 

with the Statewide Registry under Chapter 13 (commencing with Section 2850). 95 

(e) In a conservatorship of the person or a limited conservatorship of the person as 96 

described in Section 1801 of the Probate Code, the responsibility to register the conservatee 97 

under Section 290 of the Penal Code rest with the conservator if the conservatee is required by 98 

Section 290.005 to register as a sex offender. 99 

100 

§2351.5 101 

(a) Subject to subdivision (b): 102 

(1) The limited conservator has the care, custody, and control of the limited conservatee. 103 

(2) The limited conservator shall secure for the limited conservatee those habilitation or 104 

treatment, training, education, medical and psychological services, and social and vocational 105 

opportunity as appropriate and as will assist the limited conservatee in the development of 106 

maximum self-reliance and independence. 107 

(3) In a conservatorship of the person or a limited conservatorship of the person as 108 

described in Section 1801 of the Probate Code, the responsibility to register the conservatee 109 

under Section 290 of the Penal Code rest with the conservator if the conservatee is required by 110 

Section 290.005 to register as a sex offender.. 111 

(b) A limited conservator does not have any of the following powers or controls over the 112 

limited conservatee unless those powers or controls are specifically requested in the petition for 113 

appointment of a limited conservator and granted by the court in its order appointing the limited 114 

conservator: 115 

(1) To fix the residence or specific dwelling of the limited conservatee. 116 

(2) Access to the confidential records and papers of the limited conservatee. 117 

(3) To consent or withhold consent to the marriage of, or the entrance into a registered 118 

domestic partnership by, the limited conservatee. 119 

(4) The right of the limited conservatee to contract. 120 

(5) The power of the limited conservatee to give or withhold medical consent. 121 

(6) The limited conservatee's right to control his or her own social and sexual contacts 122 

and relationships. 123 

(7) Decisions concerning the education of the limited conservatee. 124 

(c) Any limited conservator, the limited conservatee, or any relative or friend of the 125 

limited conservatee may apply by petition to the superior court of the county in which the 126 

proceedings are pending to have the limited conservatorship modified by the elimination or 127 

addition of any of the powers which must be specifically granted to the limited conservator 128 

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pursuant to subdivision (b). The petition shall state the facts alleged to establish that the limited 129 

conservatorship should be modified. The granting or elimination of those powers is discretionary 130 

with the court. Notice of the hearing on the petition shall be given for the period and in the 131 

manner provided in Chapter 3 (commencing with Section 1460) of Part 1. 132 

(d) The limited conservator or any relative or friend of the limited conservatee may 133 

appear and oppose the petition. The court shall hear and determine the matter according to the 134 

laws and procedures relating to the trial of civil actions, including trial by jury if demanded. If 135 

any of the powers which must be specifically granted to the limited conservator pursuant to 136 

subdivision (b) are granted or eliminated, new letters of limited conservatorship shall be issued 137 

reflecting the change in the limited conservator's powers. 138 

(Proposed language underlined, language to be deleted stricken)

PROPONENT: San Bernardino County Bar Associations STATEMENT OF REASON The Problem: Under the current regime, an individual required by the law to register with local law enforcement as a sex offender must do so within a proscribed period of time. The responsibility to register rest with this individual; however, when the individual required to register is under a conservatorship of the person, the responsibility to register still resides in that individual. This burden exists in limited conservatorships of the person as well. Individuals who fail to register may face severe penalties for failure to comply. This regime puts an unnecessary burden on these individuals, these individuals have already been adjudged to lack the capacity to make certain decisions related to their daily life and the responsibility to register with local law enforcement is unconscionable. The Solution: shifts the responsibilities for registration from a party lacking capacity to a party with capacity with regards to sex offender registration. AUTHOR AND/OR PERMANENT CONTACT: Victor J. Herrera; Brown, White, and Osborn, 300 East State St. Ste 300 Redlands CA 92373; (o) 909-798-6179, (f) 909-798-6189; vherrera@brownwhitelaw.com 

RESPONSIBLE FLOOR DELEGATE: Victor J. Herrera

SECTION COMMENTS TO RESOLUTION 10-01-2015 TRUSTS AND ESTATES SECTION TO THE STATE BAR OF CALIFORNIA SUPPORT IF AMENDED

This Resolution proposes to shift to the conservator, the duty to register a conservatee under the Sex Offender Registration Act (“Act”) in cases of conservatorships and limited

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conservatorships of the person. The proposal is to amend California Penal and 290, 290.005 and Probate Code sections 2351, 2351.5.

During its initial discussion of this Resolution, members of TEXCOM raised two primary

concerns. One concern was that the Resolution should limit the registration requirement (and thus the conservator’s liability) to situations in which the Conservator has actual knowledge of the need for registration. A second primary concern was the potential imposition of criminal liability upon the conservator for failure to register under the Act. A TEXCOM representative spoke with the author of the Resolution and agreement was reached regarding the actual knowledge and criminal liability limitations. In the discussion, the issue of whether the conservator should have a duty to investigate was raised. In this regard, the suggestion was that the court investigator perform a background check or limit the investigation required by the conservator to the county of residence of the conservatee. Alternatively, it was proposed that the investigation requirement should be removed consistent with the actual notice issue so as to avoid creating liability based upon constructive notice. On Friday, June 12, 2015 an amended resolution was received from the author.

The amended version addresses the two primary concerns of TEXCOM which are the

requirement that the conservator has actual knowledge of the requirement of registration for the conservatee and that criminal liability will not attach for failure of the conservator to register. The revised resolution is silent on the issue of the duty of the conservator to investigate the need for registration. There was still the issue of where in the Probate Code the duty to register should be included. Currently the author has the language in 2351 and 2351.5 which addresses personal rights of the conservatee. The language should be put in an existing duty of conservator section, but there is not any clear fit. TEXCOM suggests creating a new section 2361 under “Chapter 5. Powers and Duties of Guardian or Conservator of the Person”.

Below is TEXCOM’s proposed amendment to the revised resolution. The primary

modification is to delete any change to Probate Code section 2351 and 2351.5 and instead add a new Probate Code section 2361. This new section includes a provision that the conservator does not have a duty to investigate to determine if a registration is necessary, limits the duty to register to require actual knowledge of the conservator, and eliminates the potential criminal liability of conservator for failure to register. Other changes are mostly grammatical or for consistent terminology. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to Amend California Penal and Probate Code section(s) 290, 290.005 and 2351, 2351.5 add new Probate Code section 2361 respectively to read as follows:

(Proposed language underlined, language to be deleted stricken. Amended proposed language in red)

§ 290 (a) Sections 290 to 290.024, inclusive, shall be known and may be cited as the Sex Offender 1 Registration Act. All references to "the Act" in those sections are to the Sex Offender Registration Act. 2 

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(b) Every person described in subdivision (c), for the rest of his or her life while residing in 3 California, or while attending school or working in California, as described in Sections 290.002 and 4 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or 5 the sheriff of the county if he or she is residing in an unincorporated area or city that has no police 6 department, and, additionally, with the chief of police of a campus of the University of California, the 7 California State University, or community college if he or she is residing upon the campus or in any of its 8 facilities, within five working days of coming into, or changing his or her residence within, any city, 9 county, or city and county, or campus in which he or she temporarily resides, and shall be required to 10 register thereafter in accordance with the Act. 11  (c) The following persons shall be required to register: Any person who, since July 1, 1944, has 12 been or is hereafter convicted in any court in this state or in any federal or military court of a violation of 13 Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under 14 Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 15 288, 288a, or 289, Section 220, except assault to commit mayhem, subdivision (b) and (c) of Section 16 236.1, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, paragraph (1) of 17 subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to 18 the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 19 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision 20 (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, 21 subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or 22 lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor 23 that includes all elements of one of the above-mentioned offenses; or any person who since that date has 24 been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned 25 offenses. 26  (d)(1) In a conservatorship of the person or a limited conservatorship of the person, as 27 described in Section 1801(a) or (d) of the Probate Code, the responsibility to register as described in 28 subsection (b) shall be with the conservator, only if the conservator has actual knowledge of the 29 requirement to register. If the conservatorship of the person or the limited conservatorship of the person 30 is terminated and the conservatee regains his or her rights, the responsibility to register reverts to the 31 former conservatee. 32  (d)(2) the conservator described in section (d)(1) will shall not be held criminally liable under 33 the Act for any failure to register with the appropriate authorities. 34  35 § 290.005 36 The following persons shall register in accordance with the Act: 37  (a) Except as provided in subdivision (c) or (d), any person who, since July 1, 1944, has been, 38 or is hereafter convicted in any other court, including any state, federal, or military court, of any offense 39 that, if committed or attempted in this state, based on the elements of the convicted offense or facts 40 admitted by the person or found true by the trier of fact or stipulated facts in the record of military 41 proceedings, would have been punishable as one or more of the offenses described in subdivision (c) of 42 Section 290, including offenses in which the person was a principal, as defined in Section 31. 43  (b) Any person ordered by any other court, including any state, federal, or military court, to 44 register as a sex offender for any offense, if the court found at the time of conviction or sentencing that 45 the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. 46  (c) Except as provided in subdivision (d), any person who would be required to register while 47 residing in the state of conviction for a sex offense committed in that state. 48  (d) Notwithstanding any other law, a person convicted in another state of an offense similar to 49 one of the following offenses who is required to register in the state of conviction shall not be required to 50 register in California unless the out-of-state offense, based on the elements of the conviction offense or 51 

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proven or stipulated facts in the record of conviction, contains all of the elements of a registerable 52 California offense described in subdivision (c) of Section 290: 53  (1) Indecent exposure, pursuant to Section 314. 54  (2) Unlawful sexual intercourse, pursuant to Section 261.5. 55  (3) Incest, pursuant to Section 285. 56  (4) Sodomy, pursuant to Section 286, or oral copulation, pursuant to Section 288a, provided 57 that the offender notifies the Department of Justice that the sodomy or oral copulation conviction was for 58 conduct between consenting adults, as described in Section 290.019, and the department is able, upon the 59 exercise of reasonable diligence, to verify that fact. 60  (e)(1) If the person described in Penal Code Section 290 is a conservatee of a conservatorship of 61 the person or a limited conservatorship of the person as described in Section 1801 and is a person 62 described in Penal Code Section 290, the conservator of the person, if he or she has actual notice 63 knowledge of the registration requirement, shall comply with registration requirements as mandated in 64 California Penal Code Section 290(b). 65  (e)(2) In a situation in which If a conservatorship of the person or limited conservatorship of the 66 person as described in Probate Code Section 1801 is already exists in place and the conservatee then 67 becomes a person described in Penal Code Section 290, the conservator will be required to shall register 68 the conservatee in accordance with Penal Code Section 290(b). 69 

(Proposed language underlined, language to be deleted stricken) 70  71 California Probate Code 72 §2351 73  (a) Subject to subdivision (b), the guardian or conservator, but not a limited conservator, has 74 the care, custody, and control of, and has charge of the education of, the ward or conservatee. This control 75 shall not extend to personal rights retained by the conservatee, including, but not limited to, the right to 76 receive visitors, telephone calls, and personal mail, unless specifically limited by court order. 77  (b) Where the court determines that it is appropriate in the circumstances of the particular 78 conservatee, the court, in its discretion, may limit the powers and duties that the conservator would 79 otherwise have under subdivision (a) by an order stating either of the following: 80  (1) The specific powers that the conservator does not have with respect to the conservatee's 81 person and reserving the powers so specified to the conservatee. 82  (2) The specific powers and duties the conservator has with respect to the conservatee's person 83 and reserving to the conservatee all other rights with respect to the conservatee's person that the 84 conservator otherwise would have under subdivision (a). 85  (c) An order under this section (1) may be included in the order appointing a conservator of the 86 person or (2) may be made, modified, or revoked upon a petition subsequently filed, notice of the hearing 87 on the petition having been given for the period and in the manner provided in Chapter 3 (commencing 88 with Section 1460) of Part 1. 89  (d) The guardian or conservator, in exercising his or her powers, may not hire or refer any 90 business to an entity in which he or she has a financial interest except upon authorization of the court. 91 Prior to authorization from the court, the guardian or conservator shall disclose to the court in writing his 92 or her financial interest in the entity. For the purposes of this subdivision, "financial interest" shall mean 93 (1) an ownership interest in a sole proprietorship, a partnership, or a closely held corporation, or (2) an 94 ownership interest of greater than 1 percent of the outstanding shares in a publicly traded corporation, or 95 (3) being an officer or a director of a corporation. This subdivision shall apply only to conservators and 96 guardians required to register with the Statewide Registry under Chapter 13 (commencing with Section 97 2850). 98  (e) In a conservatorship of the person or a limited conservatorship of the person as described in 99 Section 1801 of the Probate Code, the responsibility to register the conservatee under Section 290 of the 100 Penal Code rest with the conservator if the conservatee is required by Section 290.005 to register as a sex 101 

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offender. The conservator will not be held criminally liable for any failure to register. Failure to register 102 may be used as evidence regarding continued suitability of the conservator. 103 (Proposed language underlined, language to be deleted stricken) 104  105 2351.5. (a) Subject to subdivision (b): 106  (1) The limited conservator has the care, custody, and control of the limited conservatee. 107  (2) The limited conservator shall secure for the limited conservatee those habilitation or 108 treatment, training, education, medical and psychological services, and social and vocational opportunity 109 as appropriate and as will assist the limited conservatee in the development of maximum self-reliance and 110 independence. 111  (3) In a conservatorship of the person or a limited conservatorship of the person as described in 112 Section 1801 of the Probate Code, the responsibility to register the conservatee under Section 290 of the 113 Penal Code rest with the conservator if the conservatee is required by Section 290.005 to register as a sex 114 offender. The conservator of the person will be required to register if they have actual knowledge of the 115 requirement under Section 290 of the Penal Code. 116  (b) A limited conservator does not have any of the following powers or controls over the limited 117 conservatee unless those powers or controls are specifically requested in the petition for appointment of a 118 limited conservator and granted by the court in its order appointing the limited conservator: 119  (1) To fix the residence or specific dwelling of the limited conservatee. 120  (2) Access to the confidential records and papers of the limited conservatee. 121  (3) To consent or withhold consent to the marriage of, or the entrance into a registered domestic 122 partnership by, the limited conservatee. 123  (4) The right of the limited conservatee to contract. 124  (5) The power of the limited conservatee to give or withhold medical consent. 125  (6) The limited conservatee's right to control his or her own social and sexual contacts and 126 relationships. 127  (7) Decisions concerning the education of the limited conservatee. 128  (c) Any limited conservator, the limited conservatee, or any relative or friend of the limited 129 conservatee may apply by petition to the superior court of the county in which the proceedings are 130 pending to have the limited conservatorship modified by the elimination or addition of any of the powers 131 which must be specifically granted to the limited conservator pursuant to subdivision (b). The petition 132 shall state the facts alleged to establish that the limited conservatorship should be modified. The granting 133 or elimination of those powers is discretionary with the court. Notice of the hearing on the petition shall 134 be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 135 1. 136  (d) The limited conservator or any relative or friend of the limited conservatee may appear and 137 oppose the petition. The court shall hear and determine the matter according to the laws and procedures 138 relating to the trial of civil actions, including trial by jury if demanded. If any of the powers which must 139 be specifically granted to the limited conservator pursuant to subdivision (b) are granted or eliminated, 140 new letters of limited conservatorship shall be issued reflecting the change in the limited conservator's 141 powers. 142  143 New Probate Code 2361 144  In a conservatorship of the person or a limited conservatorship of the person as described in 145 Section 1801 of the Probate Code, the conservator of the person has a duty to register the conservatee 146 under the Sex Offender Registration Act (“Act”) if the conservator has actual knowledge of the 147 requirement under Section 290 of the Penal Code. The conservator shall have no duty to investigate to 148 determine if a registration is required. The conservator shall not be held criminally liable under the Act 149 for any failure to register. 150 

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DISCLAIMER: This position is only that of the TRUSTS & ESTATES SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the TRUSTS & ESTATES SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

COUNTERARGUMENTS TO RESOLUTION 10-01-2015 ORANGE COUNTY BAR ASSOCIATION The California Sex Offender Registry created under Megan's Law serves an important function. However, the proposed resolution creates an undue burden on the fiduciary in a conservatorship matter. Pursuant to Probate Code 2351, the conservator of the person is responsible for the care, custody, and control of the conservatee, but the conservatee maintains certain rights such as the right to vote, receive visitors and marry unless otherwise ordered. Furthermore, the conservatee is responsible for providing for himself financially. Just as the conservator of the person does not take on the burden of financially supporting the conservatee, the conservators should not be burdened with the responsibility to research the conservatee's criminal history. The duty to register as a sex offender is personal to the conservatee and the burden should not be put upon the fiduciary. The proposed requirement that a conservator of the person bear the responsibility to register the conservatee's sex offender status pursuant to Megan's Law would impose an undue burden upon the conservator. The conservator of the person is already charged with finding appropriate placement, providing for medical and social services, and maintaining the familial and social contacts of the conservatee. To add the responsibility of researching a conservatee's criminal history and registering the conservatee's sex offender status would deter many conservators. The conservator bears an important role for the incapacitated person, and therefore serves all of society. The burden imposed by the proposed resolution could serve to deter service by a conservator. As a result, the already overtaxed office of the public guardian would have a flood of cases, many of which it will not be able to take, leaving many unconserved incapacitated persons without appropriate protective proceedings to ensure their well being. As such, the responsibility for the registration of the sex offender status should not be shifted to the conservator of the person. The conserved sex offender should not be excused from his obligations under Megan's Law, and therefore, a more drastic reform is needed to empower the California Department of Justice to track sex offenders, such as an automated notice to the sex

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offender registry from the probate court upon order appointing a conservator, as presently exists in the domestic violence-CLETS system.

10-02-2015 Page 1 of 3

RESOLUTION 10-02-2015 DIGEST Probate: Availability of Property Held in Joint Tenancy to Pay Debts of Deceased Spouse. Amends Probate Code section 13551 to provide that property held in joint tenancy is available to pay debts of a deceased spouse. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Probate Code section 13551 to provide that property held in joint tenancy is available to pay debts of a deceased spouse. This resolution should be disapproved because it would allow all of the decedent’s joint tenancy property to be used to satisfy debts of the deceased, even if it that joint tenancy property had been the separate property of an innocent surviving spouse who was not responsible for the decedent’s obligations, and goes beyond the holding in Kircher v. Kircher (2010) 189 Cal.App.4th 1105. In Kircher v. Kircher, the issue was whether property held by the decedent in joint tenancy with his second wife could be used to satisfy his spousal support obligation to his first wife, where he had agreed that his obligation to his first wife would not expire upon his death. The court held that Probate Code section 13551 may reach into property held in joint tenancy as long as it is properly characterized as community property or the decedent’s separate property. It is good public policy that all of a decedent’s property be available to satisfy his or her debts. This resolution, by contrast, would make all property held in joint tenancy by the decedent subject to the decedent’s debts, even if the property was not community property or the decedent’s separate property. In other words, if the property had been the separate property of an innocent spouse who had no responsibility for the decedent’s prior debts, but had recently changed title to joint tenancy for convenience purposes, the property would now be subject to the deceased spouse’s debts. This would be unjust, and does not comport with the spirit or the language of the Kircher case. Moreover, individuals who hold property in joint tenancy may not understand the property may be liable for separate property debts of the deceased when the intent of the parties was for the property to be transferred and become the sole property of the survivor.

10-02-2015 Page 2 of 3

TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Probate Code section 13551 to read as follows: §13551 The liability imposed by Section 13550 shall not exceed the fair market value at the date 1 of the decedent's death, less the amount of any liens and encumbrances, of the total of the 2 following: 3 (a) The portion of the one-half of the community and quasi-community property 4 belonging to the surviving spouse under Sections 100 and 101 that is not exempt from 5 enforcement of a money judgment and is not administered in the estate of the deceased spouse. 6 (b) The portion of the one-half of the community and quasi-community property 7 belonging to the decedent under Sections 100 and 101 that passes to the surviving spouse 8 without administration. 9 (c) The separate property of the decedent that passes to the surviving spouse without 10 administration. 11 (d) All property held in joint tenancy with decedent which passes to the surviving spouse. 12

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem: The existing version of Probate Code section 13551 is silent with respect to whether joint tenancy property is available for satisfaction of a debt of a deceased spouse. Kircher v. Kircher (2010) 189 Cal.App.4th 1105, held that because all property must be either community property, separate property or quasi-community property, property held in joint tenancy must be one of those types of property and therefore would be available for satisfaction of debts under Probate Code section 13551(a) through (c) The statute should thus be conformed to this holding. The Solution: This resolution brings Probate Code section 13551 into conformity with the holding in Kircher v. Kircher (2010) 189 Cal.App.4th 1105, and makes property held in joint tenancy by both spouses available to satisfy debts. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Cary L. Cotten, Hagar & Cotten, 630 Alta Vista Drive, #102, Vista, CA 92084; (760) 726-9882; clcotten@pacbell.net

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RESPONSIBLE FLOOR DELEGATE: Mary V.J. Cataldo, Esq.

SECTION COMMENTS TO RESOLUTION 10-02-2015 TRUSTS AND ESTATES SECTION OF THE STATE BAR OF CALIFORNIA OPPOSE This Resolution brings Probate Code section 13551 into conformity with the holding in Kircher v. Kircher (2010) 189 Cal.App.4th 1105, and makes property held in joint tenancy by both spouses available to satisfy debts. TEXCOM does not support the codification of Kircher v. Kircher. The court in Kircher reasoned that the California Legislature intended to include all property of the decedent in the listing of property subject to a decedent’s debts in Probate Code section 13551. However, joint tenancy property, at the moment of death, is not the property of the decedent, separate or community; nor, at such moment, is it the community property of the spouse. Additionally, the court did not cite any specific legislative findings that supported the conclusion that joint tenancy property was intended to be governed by such a statute. Part 2 of Division 8 of the California Probate Code was designed to provide a means by which property that would otherwise be subject to a probate administration could pass to a surviving spouse by means of a summary administration. Since, if subject to a probate, such property would be subject to the debts of the decedent, it makes sense that property administered by means of an alternative summary administration procedure should be subject to the debts of a decedent in the same manner as in a probate. However, the logic does not extend to property, such as joint tenancy property, that would not be administered by a probate. Furthermore, under Part 1 of Division 8, which provides a summary administration procedure for estates of nominal value which pass to someone other than a spouse, joint tenancy property is expressly excluded from such procedures, and thus, also excluded from the corresponding provisions which confirm that the property governed by said provisions is liable for the debts of a decedent. Lastly, the California Law Revision Commission (CRLC), in Memorandum 2013-25, concluded that there was a need for comprehensive legislation to address claims of creditors against a decedent’s assets when those assets are transferred at death outside of the statutory probate process. In that Memorandum, the CLRC stated that under current law, joint tenancy property is not generally subject to the debts of a decedent. TEXCOM believes that any provision to subject non probate property to the debts of a decedent should be part of a comprehensive plan that addresses all non probate transfers and assets. To target just spousal joint tenancy is not appropriate or fair. DISCLAIMER: This position is only that of the TRUSTS & ESTATES SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California.

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RESOLUTION 10-03-2015

DIGEST Conservatorships: Renewed Petition for Termination Amends Probate Code section 1861 to require a demonstration of changed circumstances in a renewed petition for termination of a conservatorship when a prior petition has been denied.

RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE

History: Similar to Resolution 02-09-2014 which was disapproved.

Reasons: This resolution amends Probate Code section 1861 to require a demonstration of changed circumstances in a renewed petition for termination of a conservatorship when a prior petition has been denied. This resolution should be approved in principle because when a court has already denied one petition for termination the court and the parties should not be required to endure costly litigation and a hearing on another such petition absent a preliminary showing that circumstances have changed.

The imposition of a conservatorship is a serious matter, involving a determination as to whether a proposed conservatee should be deprived of certain rights. Therefore, it is proper that the conservatee have the right to petition for termination of the conservatorship when the circumstances initially justifying the conservatorship have changed. But it does not follow that the conservatee should be able to burden the interested parties and the court with repetitive and unnecessary litigation unless there is some actual change in circumstances that would require the court to make a different ruling from its earlier denial of the same petition. Practitioners who regularly represent conservatees report anecdotally that some conservatees want them to repeatedly petition for termination even where it is clear that nothing has changed and that such requests place them in a difficult position. Under this proposed resolution, unless the conservatee pleads changed circumstances, the court would be able to summarily deny an improper renewed petition, thereby relieving respondents of the obligation to respond. By underscoring the requirement that circumstances have changed since the denial of the prior petition this resolution will reduce the number of redundant petitions, without imposing a severe burden on the conservatee.

It is not clear what effect, if any, the addition of proposed new subdivision (e) will have, since it is implicit under subdivision (c) that absent the requisite allegations the petitioner may not proceed with the renewed petition.

10-03-2015 Page 2 of 4

TEXT OF RESOLUTION RESOLVED, that the Conference of California Bar Association recommends that legislation be sponsored to amend Probate Code section 1861 to read as follows: §1861 (a) A petition for the termination of the conservatorship may be filed by any of the 1 following: 2 (1) The conservator. 3 (2) The conservatee. 4 (3) The spouse, or domestic partner, or any relative or friend of the conservatee or other 5 interested person. 6 (b) The petition shall state facts showing that the conservatorship is no longer required. 7 (c) A party who originally filed for a petition to terminate that was denied, may file a 8 subsequent petition to terminate upon new or different facts, circumstances, or law, in which 9 case it shall be shown by affidavit what petition was made before, what order was made, and 10 what new or different facts, circumstances, or law are claimed to be shown. 11 (d) If petitioner fails to show that there are new or different facts, circumstances, or law, 12 the court may dismiss the petition. 13 (e) If petitioner sets forth sufficient facts to show that there are new or different facts, 14 circumstances, or law, the petitioner may proceed forward with the petition for termination of the 15 conservatorship. 16

(Proposed new language underlined; language to be deleted stricken.) PROPONENT: San Bernardino County Bar Association STATEMENT OF REASONS The Problem: Under current law, a petition for termination can be filed by the conservatee, or on behalf of the conservatee, at any time during the conservatorship proceedings. In some situations, a conservatee will file a petition for termination and if it is denied by the court, the conservatee will file a subsequent petition a few months later. If that petition is also denied, the conservatee will most likely file another petition for termination. When a conservatee files a petition for termination, the court will set the matter for hearing and this can lead to costly litigation when the conservatee continues to file multiple petitions to terminate the conservatorship. There is nothing in the Probate Code that prevents a conservatee from filing one petition after another to terminate the conservatorship when the initial petition has been denied, which can lead to costly litigation for the conservatee. The Solution: This resolution would require that the conservatee, or other person petitioning to terminate a conservatorship, must show new or different facts or circumstances, or a change in

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the law, before they can proceed on a subsequent petition to terminate the conservatorship if the initial petition was denied. This will save the conservatee's estate the costs of unnecessary litigation when the circumstances have not changed since the prior petition to terminate was filed. If a conservatee can show a new or different facts or circumstances, or a change in the law, since the prior petition for termination, then the court can proceed forward on the subsequent petition for termination. This resolution would not harm the conservatee's rights to petition to terminate. This resolution is in line with the long standing concepts of res judicata and collateral estoppel and follows the language set forth in Code of Civil Procedure section 1008(b) seeking a motion for reconsideration. IMPACT STATEMENT The proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Karin Horspool, Horspool & Horspool, 300 E. State Street, Suite 200, Redlands, CA 92373; (909) 792-9660; karin@lawyershp.com and Mark McGuire, Brown, White and Newhouse, 300 E. State Street, Suite 300, Redlands, CA 92372; RESPONSIBLE FLOOR DELEGATE: Mark McGuire/Karin Horspool

SECTION COMMENTS TO RESOLUTION 10-03-2015

TRUSTS AND ESTATES SECTION TO THE STATE BAR OF CALIFORNIA OPPOSE

TEXCOM opposes this Resolution, which seeks to Amend Probate Code section 1861 to require a demonstration of changed circumstances in a renewed petition for termination of a conservatorship when a prior petition has been denied.

A conservatee’s right to petition for termination of conservatorship implicates a fundamental right of personal liberty. The Resolution impacts a fundamental due process right which should not be short-circuited.

DISCLAIMER: This position is only that of the TRUSTS & ESTATES SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees

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or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the TRUSTS & ESTATES SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

10-04-2015 Page 1 of 5

RESOLUTION 10-04-2015 DIGEST Probate: Clarifies the Standard of Capacity to be Applied to Trusts or Wills Amends Probate Code section 811 to clarify the application of Probate Code section 6100.5 only to wills and the decisional capacity standard of Probate Code section 812 to trusts. RESOLUTION COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: Similar to Resolutions 04-04-2012, 04-05-2012, and 05-01-2013, which were withdrawn and similar to Resolution 05-04-2013, which was approved in principle. Reasons: This resolution amends Probate Code section 811 to clarify the application of Probate Code section 6100.5 only to wills and the decisional capacity standard of Probate Code section 812 to trusts. This resolution should be approved in principle because it clarifies the appropriate code sections that should be applied in determining capacity to create a trust, amendments to a trust and wills. Since the Court of Appeal’s ruling in Anderson v. Hunt (2011) 196 Cal.App.4th 722, several resolutions have been submitted to change the applicable code sections in an effort to rectify the confusion caused by Anderson. The decision in Anderson created a sliding scale when evaluating a trustor’s mental capacity to make or amend a trust. Anderson concluded that if the act in question (making or amending a trust) is analogous in content and simplicity to that of making a will, then that act is properly evaluated under standard of testamentary capacity set forth in section 6100.5. Because of the creation of this sliding scale, it could open the door to additional litigation to determine the simplicity or complexity of the document at issue, whether it is more like a will or a trust, before determining which standard should be used. Most of the proposed resolutions were withdrawn because they either sought to make a radical change to the standard of capacity to make a simple will by creating a single higher standard of capacity, or to make the evidentiary requirements under Probate Code section 811 inapplicable to wills. Resolution 05-04-2013 was approved because it was a simple solution to the legal confusion created by Anderson and clarified that Probate Code section 6100.5 should only apply to wills. This resolution also creates a simple solution by clarifying that Probate Code section 6100.5 shall be applied in determining capacity to make a will, Probate Code section 812 shall be applied in determining capacity to make a trust or trust amendments, and the evidentiary requirements of Probate Code section 811 will still apply to both trusts and wills.

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TEXT OF RESOLUTION RESOLVED, that the Conference of California Bar Associations recommends that legislation be sponsored to amend Probate Code section 811 to read as follows: § 811 (a) A determination that a person is of unsound mind or lacks the capacity to make a 1 decision or do a certain act, including, but not limited to, the incapacity to contract, to make a 2 conveyance, to marry, to make medical decisions, to execute wills, or to execute trusts, shall be 3 supported by evidence of a deficit in at least one of the following mental functions, subject to 4 subdivision (b), and evidence of a correlation between the deficit or deficits and the decision or 5 acts in question: 6 (1) Alertness and attention, including, but not limited to, the following: 7 (A) Level of arousal or consciousness. 8 (B) Orientation to time, place, person, and situation. 9 (C) Ability to attend and concentrate. 10 (2) Information processing, including, but not limited to, the following: 11 (A) Short- and long-term memory, including immediate recall. 12 (B) Ability to understand or communicate with others, either verbally or otherwise. 13 (C) Recognition of familiar objects and familiar persons. 14 (D) Ability to understand and appreciate quantities. 15 (E) Ability to reason using abstract concepts. 16 (F) Ability to plan, organize, and carry out actions in one's own rational self-interest. 17 (G) Ability to reason logically. 18 (3) Thought processes. Deficits in these functions may be demonstrated by the presence 19 of the following: 20 (A) Severely disorganized thinking. 21 (B) Hallucinations. 22 (C) Delusions. 23 (D) Uncontrollable, repetitive, or intrusive thoughts. 24 (4) Ability to modulate mood and affect. Deficits in this ability may be demonstrated by 25 the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, 26 panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is 27 inappropriate in degree to the individual's circumstances. 28 (b) A deficit in the mental functions listed above may be considered only if the deficit, by 29 itself or in combination with one or more other mental function deficits, significantly impairs the 30 person's ability to understand and appreciate the consequences of his or her actions with regard 31 to the type of act or decision in question. For testamentary wills, the type of act or decision in 32 question shall be determined only using the testamentary capacity standard under Probate Code 33 section 6100.5. For trusts, the type of act or decision in question shall be determined only using 34 the capacity standard under Probate Code section 812. For all other acts or decisions in question 35 the applicable capacity standard applied to such act or decision shall be used. 36 (c) In determining whether a person suffers from a deficit in mental function so 37 substantial that the person lacks the capacity to do a certain act, the court may take into 38 consideration the frequency, severity, and duration of periods of impairment. 39 (d) The mere diagnosis of a mental or physical disorder shall not be sufficient in and of 40

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itself to support a determination that a person is of unsound mind or lacks the capacity to do a 41 certain act. 42 (e) This part applies only to the evidence that is presented to, and the findings that are 43 made by, a court determining the capacity of a person to do a certain act or make a decision, 44 including, but not limited to, making medical decisions. Nothing in this part shall affect the 45 decision making process set forth in Section 1418.8 of the Health and Safety Code, nor increase 46 or decrease the burdens of documentation on, or potential liability of, health care providers who, 47 outside the judicial context, determine the capacity of patients to make a medical decision. 48

(Proposed new language underlined; language to be deleted stricken)

PROPONENT: San Diego County Bar Association STATEMENT OF REASONS The Problem: The appellate court in Andersen v. Hunt (2011) 196 Cal. App. 4th 722, created a loophole in trust capacity standards by determining that Probate Code section 811(b) allowed the application of testamentary capacity to trust amendments where the amendment is “simple” in its changes to the Trust instrument. The problem with this application is that testamentary documents, such as wills, have added formalistic requirements (such as requiring two witnesses or a holographic document), whereas trust amendments do not. The lower capacity standard used for will creation and amendment is safeguarded, in part, by the formalistic requirements. In contrast, trusts have no such safeguard and therefore a higher capacity standard is more reasonable to protect the intent of the settlor(s). Furthermore, the Andersen case created an undefined class of trust amendments (namely “simple” amendments) that cannot be known at the time a trust amendment is created. This leaves the public unsure of what standard will apply to a trust amendment and how to determine whether a person has the necessary capacity to create a trust amendment. Only after the issue is litigated through trial, does the court determine if the testamentary capacity standard under section 6100.5 will apply or not. As a result, a person wanting to execute a trust amendment has no guidance on whether that amendment will be valid and under what standard it will ultimately be judged. The Solution: This resolution adds new language to Probate Code section 811(b) that requires the use of Probate Code section 6100.5 (testamentary capacity) to wills and the use of Probate Code section 812 to trusts. All other acts or decisions are judged by the applicable standard for such act or decision. With this amendment, members of the public will know that for all acts in creating or amending a trust the capacity standard under Probate Code section 812 will apply. IMPACT STATEMENT This resolution would effectively overturn the court’s decision in Andersen v. Hunt (2011) 196 Cal. App. 4th 722. Otherwise, this resolution does not affect any other law, statute, or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known.

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AUTHOR AND/OR PERMANENT CONTACT: Kevin R. Yee, Albertson & Davidson, LLP, 2175 Salk Avenue, Suite 180, Carlsbad, California 92008, 760-804-2711, kevin@aldavlaw.com. RESPONSIBLE FLOOR DELEGATE: Kevin R. Yee

SECTION COMMENTS TO RESOLUTION 10-04-2015

TRUSTS AND ESTATES SECTION OF THE STATE BAR OF CALIFORNIA OPPOSE

The Resolution proposes to add the following language to Probate Code section 811(b): “For testamentary wills, the type of act or decision in question shall be determined only using the testamentary capacity standard under Probate Code section 6100.5. For trusts, the type of act or decision in question shall be determined only using the capacity standard under Probate Code section 812. For all other acts or decisions in question the applicable capacity standard applied to such act or decision shall be used.” The problem as stated by the authors is that the decision of Andersen v. Hunt (2011) 196

Cal.App.4th 722 created a “loophole” in trust capacity standards allowing testamentary capacity to be applied to “simple” trust amendments. It is argued that the lower standard for wills is appropriate because of the “added formalistic requirements (such as requiring two witnesses or a holographic document),” something absent in trust amendments.

The authors also suggest that the Andersen case created an undefined class of trust amendments that are “simple” and thus governed by testamentary capacity standards. The result is that the applicable capacity standard is unknown until a court determines if the document is “simple” or complex.

The appellate court in Andersen determined Probate Code section 6100.5 applies to trusts or trust amendments “that are analogous to wills or codicils.” Probate Code sections 810 to 812 focus the fact-trier’s capacity assessment on the person’s ability to appreciate the consequence of the particular act he or she wishes to take. If the challenged trust amendment in its content and complexity closely resembles a will or codicil, then “we believe it is appropriate to look to section 6100.5 to determine when a person’s mental deficits” render that person incompetent. The concept of Probate Code sections 810 to 812 was to create a flexible capacity standard matching the complexity of the instrument with the requisite capacity to engage in the decision or action. The Andersen court did exactly what it was supposed to do: apply a sliding scale to the instrument in question. Engaging in that analysis, the appellate court determined the appropriate standard was application of 6100.5.

While a bright line rule provides certainty, it comes at the expense of flexibility. And a sliding scale is at the heart of Probate Code sections 810-812. TEXCOM has considered Andersen at some length, and believes it appropriately applies a sliding scale as was envisioned by Probate Code sections 810-812, and was correctly decided.

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A technical error of the Resolution concerns the placement of the proposed statutory language. Probate Code section 811(a) states that a person is of unsound mind to make a decision or to do an act if there is evidence of a deficit in at least one of a long list of mental functions. Subsection (b) provides that a mental deficit such as described in (a) may only be considered if it significantly impairs the person’s ability to understand and appreciate the consequences of his actions.

Section 811 does not call for application of any particular capacity standard. Sections 810 to 812 set forth a coherent structure that assumes capacity, articulates applicable mental deficits, requires a link between a deficit and the act or decision in question, and sets forth a sliding scale which aims to match capacity to complexity of the instrument. To insert a statement specifying the appropriate capacity standard for wills and trusts into (b) is totally out of place in section 811(b) and inconsistent with the overall concepts being expressed in 810 to 812. If it is appropriate to add this “clarification” to the Probate Code, the language belongs elsewhere. DISCLAIMER: This position is only that of the TRUSTS & ESTATES SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the TRUSTS & ESTATES SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

10-05-2015 Page 1 of 4 

RESOLUTION 10-05-2015

DIGEST Conservatorships: Right to a Trial by Jury and Jury Fees Amends Probate Code section 1827 to specify that a proposed conservatee must demand a jury trial when first objecting to the petition and when jury fees may be assessed. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar prior resolutions found.

Reasons: This resolution amends Probate Code section 1827 to specify that a proposed conservatee must demand a jury trial when first objecting to the petition and when jury fees may be assessed. This resolution should be disapproved because the imposition of a conservatorship deprives the conservatee of certain liberties, and the proposed conservatee should therefore enjoy the same liberal right to demand a jury up to the day of trial as does a criminal defendant. Probate Code section 1827 enshrines a proposed conservatee’s right to a jury trial if demanded, but does not specify when the demand must be made, or whether jury fees must be paid by the proposed conservatee. This resolution is laudable insofar as it would clarify that jury fees would not be due unless and until a conservatorship is imposed and the court has determined that the estate has the ability to pay the fees. In that regard it tracks similar fee assessment provisions of the Probate Code such as section 1851.5 pertaining to the assessment on the conservatee’s estate of the court investigator’s fee. However, the resolution would require a proposed conservatee to elect a jury trial at the very outset of the case, even sooner than a civil litigant must make that decision. A conservatorship is a drastic proceeding that can result in the curtailment of a person’s liberties, and is thus somewhat akin to a criminal proceeding. A criminal defendant has a right to a jury trial and can demand it up to the beginning of trial. A proposed conservatee should be allowed the same liberal right to make this election as late as the first day of trial. Note: This resolution is similar, and in the alternative to, Resolution 10-06-2015, which also addresses the time by which a conservatee must demand a jury trial but allows the demand to be made at any time until trial begins. TEXT OF RESOLUTION RESOLVED, that the Conference of California Bar Associations recommends that legislation be sponsored to amend Probate Code section 1827 to read as follows: §1827 The court shall hear and determine the matter of the establishment of the conservatorship 1 

according to the law and procedure relating to the trial of civil actions, including trial by jury if 2 

demanded by the proposed conservatee. 3 

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(a) The proposed consevatee must demand the right to a trial by jury at the time he or she 4 

objects to the petition for conservatorship. 5 

(b) No jury fees shall be required to be posted, regarding a petition for a conservatorship 6 

of the person. 7 

(c) The court may charge jury fees and have the conservator of the estate pay those fees 8 

from estate funds if, (1) the petition for the conservatorship of the estate is granted, and (2) the 9 

court makes a finding that the conservatee’s estate has the ability to pay jury fees pursuant to 10 

Probate Code § 2623. 11 

(Proposed new language underlined; language to be deleted stricken.)

PROPONENT: San Bernardino County Bar Association STATEMENT OF REASONS The Problem: The Probate Code is silent as to when the demand for a jury trial regarding a petition for conservatorship must be made as well as when and how jury fees, if any are to be paid. Probate Code § 1000 states where there is no specific rule in the Probate Code governing a procedure, the California Code of Civil Procedure, is to be followed. Thus, a strict reading of the codes means that a proposed conservatee must exercise his or her right to a trial by jury upon the objection to the petition for conservatorship and submit that in writing to the court and pay jury fees prior to the first case management conference; which are not scheduled in probate cases. The Solution: This resolution would amend Probate Code section 1827 regarding time and means of a proposed conservatee to exercise their right to have the issue of the petition for conservatorship decided by a jury of their peers and when jury fees, if any, are due and must be paid and by whom. Currently the probate code grants a proposed conservatee, whose liberty interest is at issue regarding a petition for conservatorship, the right to trial by jury. However, the code is silent as to when that demand for a jury trial must be made. Practitioners in this field have seen different rulings from judicial officers regarding when the demand for a jury trial must be made and if jury fees must be posted by the proposed conservatee. In some cases a demand for a jury trial, given the quasi-criminal nature of the proceedings, is honored by a judicial officer when made the day trial is set to start. In other instances the judicial officer has sighted the code of California Code of Civil Procedure, § 631, which states that jury fees must be paid prior to the first case management conference. Probate cases do not schedule case management conferences. This has created an ambiguity in the code which needs to be addressed. The right of a proposed consevatee to a trial by jury is also established in Welfare and Institutions Code §5350. The proposed resolution would not affect procedures under this code section. Proceedings under this code section are governed by specific detailed procedures and practitioners in this area of the law have not seen the kind of procedural problem as noted above in strictly probate conservatorship matters. IMPACT STATEMENT This resolution does not affect any other law, statute or rule.

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CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: John W. Short, Brown White & Osborn, 300 E. State St. Suite, 300, Redlands, CA 92373, PH: 909-798-6179, Email: jshort@brownwhitelaw.com RESPONSIBLE FLOOR DELEGATE: John W. Short

SECTION COMMENTS TO RESOLUTION 10-05-2015 TRUSTS AND ESTATES SECTION OF THE STATE BAR OF CALIFORNIA OPPOSE The problem with the current statue, as stated by the author, is the Probate Code grants a proposed conservatee the right to demand a jury trial regarding a petition for conservatorship but the code is silent as to when the demand for a jury trial must be made, and when and how jury fees, if any, are to be paid. Probate Code section 1000 states where there is no specific rule in the Probate Code governing a procedure, the Code of Civil Procedure is to be followed. A strict reading of the code means that a proposed conservatee must exercise his or her right to a jury trial upon the objection to the petition for conservatorship and submit it in writing to the court and pay jury fees prior to the first case management conference but none are scheduled in probate cases. This omission in the Probate Code has resulted in inconsistent results. In some cases a demand for a jury trial is allowed when made on the date of trial because of the quasi-criminal nature of the proceedings. In other cases, judges have relied on CCP section 631, which states jury fees must be paid prior to the first case management conference, to preclude jury trials.

TEXCOM is concerned that a proposed conservatee may not understand the import of a trial by jury at the time he or she objects to the conservatorship. The proposed conservatee may not have counsel yet, nor have sufficient information to make an informed decision about this basic procedural right. Because the proceeding impacts the proposed conservatee’s personal liberties, he/she should be afforded the right to request a trial by jury on the broadest possible terms. Hence, TEXCOM opposes 10-05 and supports Resolution 10-06. DISCLAIMER: This position is only that of the TRUSTS & ESTATES SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California.

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Membership in the TRUSTS & ESTATES SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

COUNTERARGUMENTS TO RESOLUTION 10-05-2015 BAR ASSOCIATION OF NORTHERN SAN DIEGO COUNTY This proposed resolution creates a large trap for the unwary pro se litigant. Conservatorship proceedings are initially defended by a large number of proposed conservatee’s acting pro se. It is not until after the objection date that some people obtain counsel. Making the deadline to demand a jury so early in the proceeding can cause undue harm on the unrepresented.

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RESOLUTION 10-06-2015 DIGEST Conservatorships: Right to a Trial by Jury and Jury Fees Amends Probate Code section 1827 to specify that a proposed conservatee may demand a jury trial at any time before trial commences and when the jury fees may be assessed. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar prior resolutions found. Reasons: This resolution amends Probate Code section 1827 to specify that a proposed conservatee may demand a jury trial at any time before trial commences and when the jury fees may be assessed. This resolution should be approved in principle because a proposed conservatee should enjoy the same liberal right to demand a jury up to the day of trial, and jury fees should only be assessed if the conservatorship is imposed and the estate has the ability to pay them. Probate Code section 1827 enshrines a proposed conservatee’s right to a jury trial if demanded, but does not specify when demand must be made, or whether jury fees must be paid by the proposed conservatee. This resolution clarifies that a proposed conservatee may elect a jury trial up to and including the first day of trial, as may a criminal defendant. A conservatorship is a drastic proceeding that can result in the curtailment of a person’s liberties, and is thus somewhat akin to a criminal proceeding. Thus it is appropriate that a proposed conservatee should be allowed the same leeway in electing to demand a jury. This resolution would also clarify that jury fees would not be due unless and until a conservatorship is imposed and the court has determined that the estate has the ability to pay the fees. It is only fair that since a proposed conservatee does not initiate proceedings to conserve him or herself, jury fees should not be assessed unless the conservatorship is actually created. In that regard the resolution also tracks other fee assessment provisions of the code, such as section 1851.5, which pertains to the assessment on the conservatee’s estate of the court investigator’s fee. Note: This resolution is similar, and in the alternative to, Resolution 10-05-2015, which also addresses the time by which a conservatee must demand a jury trial but requires that such a demand be made at the outset of the proceedings.

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TEXT OF RESOLUTION RESOLVED, that the Conference of California Bar Associations recommends that legislation be sponsored to amend Probate Code section 1827 to read as follows: §1827 The court shall hear and determine the matter of the establishment of the conservatorship 1 

according to the law and procedure relating to the trial of civil actions, including trial by jury if 2 

demanded by the proposed conservatee. 3 

(a) The proposed consevatee may demand a trial by jury at any time in the proceedings, 4 

up to and including the date of trial. 5 

(b) No jury fees shall be required to be posted, regarding a petition for a conservatorship 6 

of the person. 7 

(c) The court may charge jury fees and have the conservator of the estate pay those fees 8 

from estate funds if, (1) the petition for the conservatorship of the estate is granted, and (2) the 9 

court makes a finding that the conservatee’s estate has the ability to pay jury fees pursuant to 10 

Probate Code section 2623. 11 

(Proposed new language underlined; language to be deleted stricken.)

PROPONENT: San Bernardino County Bar Association STATEMENT OF REASONS The Problem: The Probate Code is silent as to when the demand for a jury trial regarding a petition for conservatorship must be made as well as when and how jury fees, if any are to be paid. Probate Code § 1000 states where there is no specific rule in the Probate Code governing a procedure, the California Code of Civil Procedure, is to be followed. Thus, a strict reading of the codes means that a proposed conservatee must exercise his or her right to a trial by jury upon the objection to the petition for conservatorship and submit that in writing to the court and pay jury fees prior to the first case management conference; which are not scheduled in probate cases. Forcing a proposed conservatee to exercise his or her right to a trial by jury at the initial stages of the proceedings will drastically increase the number of jury trials schedule for already overburden courts. The Solution: This resolution amends Probate Code section 1827 regarding the time and means of a proposed conservatee to exercise their right to have the issue of the petition for conservatorship decided by a jury of their peers and when jury fees, if any, are due and must be paid and by whom. Currently the probate code grants a proposed conservatee, whose liberty interest is at issue regarding a petition for conservatorship, the right to trial by jury. However, the code is silent as to when that demand for a jury trial must be made. Practitioners in this field have seen different rulings from judicial officers regarding when the demand for a jury trial must be made and if jury fees must be posted by the proposed conservatee. In some cases a demand for a jury trial, given the quasi-criminal nature of the proceedings, is honored by a judicial officer when made the day trial is set to start. In other instances the judicial officer has sighted the code of California Code of Civil Procedure, § 631, which states that jury fees must be paid prior to the

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first case management conference. Probate cases do not schedule case management conferences. This has created an ambiguity in the code which needs to be addressed. In addition to this, it is in the best interests of judicial economy for the proposed conservatee to put off for as long as is possible the demand for a right to a trial by jury, in order to not bog down the courts and to facilitate cooperation between the parties, who are most often family members and possible settlement of the matter. Once the demand for a jury is made the parties will dig in their heels and the court system will grind to a halt. The right of a proposed consevatee to a trial by jury is also established in Welfare and Institutions Code §5350. The proposed resolution would not affect procedures under this code section. Proceedings under this code section are governed by specific detailed procedures and practitioners in this area of the law have not seen the kind of procedural problem as noted above in strictly probate conservatorship matters. IMPACT STATEMENT This resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Mark H. McGuire, Brown White & Osborn 300 E. State St. Suite, 300, Redlands, CA 92373, PH: 909-798-6179, Email: mmcguire@brownwhitelaw.com RESPONSIBLE FLOOR DELEGATE: Mark H. McGuire

SECTION TO COMMENTS TO RESOLUTION 10-06-2015 TRUSTS AND ESTATES SECTION OF THE STATE BAR OF CALIFORNIA SUPPORT The problem with the current statue, as stated by the author, is the Probate Code grants a proposed conservatee the right to demand a jury trial regarding a petition for conservatorship but the code is silent as to when the demand for a jury trial must be made, and when and how jury fees, if any, are to be paid. Probate Code section 1000 states where there is no specific rule in the Probate Code governing a procedure, the Code of Civil Procedure is to be followed. A strict reading of the code means that a proposed conservatee must exercise his or her right to a jury trial upon the objection to the petition for conservatorship and submit it in writing to the court and pay jury fees prior to the first case management conference but none are scheduled in probate cases.

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This omission in the Probate Code has resulted in inconsistent results. In some cases a demand for a jury trial is allowed when made on the date of trial because of the quasi-criminal nature of the proceedings. In other cases, judges have relied on CCP section 631, which states jury fees must be paid prior to the first case management conference, to preclude jury trials. Subdivision (a) clearly establishes when a proposed conservatee must elect his or her right to a jury trial, and clarity in probate proceedings is preferred to ambiguity. Additionally, since the liberty interest of the proposed conservatee is at issue, it is appropriate that he or she not be forced to demand a jury trial at the initial stages of the proceeding before the issues have been fleshed out in order to avoid forfeiting the right to have a jury trial. Moreover, as investigation and discovery proceed after the proposed conservatee objects to the petition for conservatorship, the proposed conservatee may change his or her mind concerning a court or jury trial. The proposal allows the proposed conservatee to benefit from new information gathered after he or she objects to the petition for probate. Subdivision (b) states that no jury fees shall be required to be posted, regarding a petition for conservatorship of the person. This is reasonable because it does not add an additional financial burden or hurdle to an individual seeking to protect his or her liberty interest. There is, however, the potential for waste of scarce judicial resources because proposed conservatees can demand a jury trial without incurring any costs, even if they have the resources to pay jury fees. Subdivision (c) provides a framework for determining when jury fees must be paid regarding a petition for conservatorship of the estate. It eliminates a financial barrier to the proposed conservatee’s exercise of his or her right to a jury trial but also allows, under certain circumstances, the courts to recover some of the costs incurred by jury trials. DISCLAIMER: This position is only that of the TRUSTS & ESTATES SECTION of the State Bar of California. This position has not been adopted by either the State Bar's Board of Trustees or overall membership, and is not to be construed as representing the position of the State Bar of California. Membership in the TRUSTS & ESTATES SECTION is voluntary and funding for section activities, including all legislative activities, is obtained entirely from voluntary sources.

COUNTERARGUMENTS TO RESOLUTION 10-06-2015 ORANGE COUNTY BAR ASSOCIATION The Conservatee's right to trial by jury is an important constitutional right that should be preserved. There is need for clarity in law as to when the conservatee must request his right to trial by jury. The proposed resolution creates an unfair burden upon the petitioner and opens the gates to unfair gamesmanship. For these reasons, the conservatee should not be able to request

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jury trial on the day of trial, but should be required to make that request at upon making his objection. It would not be efficient to allow a conservatee to request a jury trial on the day of trial. A petitioner would be at a disadvantage to prepare for the possibility that the contested conservatorship trial could be before a jury The conservatorship is the only proceeding under the probate code that allows for a jury trial. Most probate practitioners would not be competent to act as trial counsel in a jury trial, and would likely require co-counsel with experience in jury trials. Furthermore, even where the probate attorney is competent to handle a jury trial, in each contested conservatorship trial, the petitioner and ultimately the conservatee's estate must bear the extra expense of counsel's preparation for voir dire, etc., in the event that the conservatee requests a jury trial on the day of trial, or run the risk of going to trial unprepared. Even where the probate court finds that the election of a jury trial is basis for a continuance, there will be unnecessary delay and extra costs generated by the continuance. Furthermore, it is not unimaginable that the last minute request for a jury trial could be used as tool of gamesmanship by uncivilized litigators who represent conservatees. Proposed resolution 10-05-2015 on the other hand, requires the conservatee to make the request for a jury trial at time that he makes his objection. This would not be a terrible burden upon the conservatee so long as the conservatee is advised of his rights and has counsel appointed to him to ensure that he makes an informed choice. If the conservatee makes the request for a jury trial when he makes his objection, then the court should allow him the opportunity to change his mind at a later date. In this way, the conservatee's rights are preserved and the petitioner has an opportunity to adequately prepare for trial without unnecessary waste, expense, and uncertainty. BAR ASSOCIATION OF NORTHERN SAN DIEGO COUNTY This proposed resolution could create an unfair advantage to a party by allowing a party to demand a jury trial up to the date of trial because an attorney prepares differently for a trial by jury than a bench trial. Notice of a jury trial earlier in the proceedings will alter how one party conducts and prepares his case. Requiring the demand to be thirty or sixty days before trial would be more practical.

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RESOLUTION 11-01-2015

DIGEST Civil Procedure: Amends Civil Jury Instruction Regarding “Dangerous Condition” Amends the definition of “dangerous condition” as articulated in California Approved Civil Jury Instruction (CACI) No. 1102. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends the definition of “dangerous condition” as articulated in California Approved Civil Jury Instruction (CACI) No. 1102. This Resolution should be disapproved because the proposed instruction is confusing and combines the definition of “dangerous condition” with the separate affirmative defense of contributory negligence. The use notes for CACI 1102 specifically acknowledge that the instruction – as written – is based upon Government Code section 830, subdivision (a), which defines a “dangerous condition.” The proponent does not seek to change the definition of “dangerous condition.” The proponent purportedly wishes to “clarify an ambiguity” when none exists; the instruction accurately restates the definition of a “dangerous condition.” What this resolution would actually do is include two affirmative defenses in the CACI jury instruction defining “dangerous condition,” and thereby create a jury instruction defining “dangerous condition” which is contradictory to the actual statute. If a party wishes to have jury instructions for multiple affirmative defenses, CACI provides for those to be presented separately, or, alternatively, the party may request a special jury instruction pursuant to Code of Civil Procedure section 603.This resolution would require that the currently optional language in the instruction regarding contributory negligence be used for all “dangerous condition” cases, even if that defense is not appropriate. If the proponent wishes to change the definition of “dangerous condition” contained in Government Code section 830, subdivision (a), then a resolution should be proposed changing that statute. TEXT OF RESOLUTION RESOLVED, that the Conference of California Bar Association recommends that the Judicial Council be requested to modify California Civil Jury Instruction 1102 to read as follows: CACI 1102 A “dangerous condition” is a condition of public property that creates a substantial risk of 1 injury to members of the general public when the property [or adjacent property] is used with 2 reasonable care and in a reasonably foreseeable manner. The fact that the plaintiff’s own 3 negligence and/or the negligence of a third party may have contributed to the plaintiff’s injuries 4 in this particular case does not preclude a finding of “dangerous condition.” However, if you 5 believe that, as a general matter, the property can only ever be dangerous to a person when he 6

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and any third parties who may have contributed to the person’s injuries are both negligent, then 7 the property is not in a “dangerous condition.” A condition that creates only a minor risk of 8 injury is not a dangerous condition. [Whether the property is in a dangerous condition is to be 9 determined without regard to whether [[name of plaintiff]/ [or] [name of third party]] exercised 10 or failed to exercise reasonable care in [his/her] use of the property.] 11

(Proposed new language underlined. Language to be stricken lined out) PROPONENT: San Diego County Bar Association STATEMENT OF REASONS The Problem: The current instruction is ambiguous because the first and last sentences can appear contradictory to a lay person. The Solution: The amendment simplifies the language of the last sentence to make it clear how it can be reconciled with the first sentence. IMPACT STATEMENT: The proposed resolution does not impact any other law, statute, or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Karen R. Frostrom, Thorsnes Bartolotta McGuire, 2550 Fifth Avenue, Suite 1100, San Diego, California, 92103, 619-236-9363, frostrom@tbmlawyers.com RESPONSIBLE FLOOR DELEGATE: Karen R. Frostrom

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RESOLUTION 11-02-2015 DIGEST Small Claims: Motion to Set Aside and Vacate Judgment Amends Code of Civil Procedure section 116.725 to prevent the filing of a motion to set aside and vacate a small claims judgment based on the ground of an incorrect or erroneous legal basis. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Code of Civil Procedure section 116.725 to prevent the filing of a motion to set aside and vacate a small claims judgment based on the ground of an incorrect or erroneous legal basis. This resolution should be disapproved because it would deny plaintiffs their only option for review as they are unable to appeal a judgment on their claim under Code of Civil Procedure section 116.710. This resolution is intended to prevent delays caused by respondents in small claims cases first filing a motion to set aside and then an appeal to the superior court, where the small claims trial would be reviewed de novo. However, in most courts, motions to set aside under section 116.725 are rare, and they are also usually handled expeditiously. Taking away this right would leave plaintiffs in small claims courts no remedy at all, when it is better to provide for some form of review to ensure against egregious mistakes. Small claims court judges should have the chance to correct their legal errors. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Code of Civil Procedure section 116.725 to read as follows: §116.725 (a) A motion to correct a clerical error in a judgment or to set aside and vacate a 1 judgment on the ground of an incorrect or erroneous legal basis for the decision may be made as 2 follows: 3 (1) By the court on its own motion at any time. 4 (2) By a party within 30 days after the clerk mails notice of entry of judgment to the 5 parties. 6 (b) Each party may file only one motion to correct a clerical error or to set aside and 7 vacate the judgment on the ground of an incorrect or erroneous legal basis for the decision. 8

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County

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STATEMENT OF REASONS The Problem: Savvy small claim parties are using this statute as a way to get in a second appeal and delaying the proceedings. These parties, as a matter of right, may file a motion to set aside the judgment basis on an incorrect or erroneous legal basis. Although they have 30 days to file the motion, it takes several months for the paperwork to be sent to the pro tempore judge who heard the case, which delays finality of the matter for the prevailing party. Then, once the initial decision is confirmed, a small claim appeal is filed, giving the losing party potentially two chances to overturn an unfavorable decision and delaying the matter for months in what should be determined on an expedited basis. The Solution: This removes the ability for a small claims party to have a second bite at the apple by filing a motion to set aside and vacate the judgment based on incorrect or erroneous legal basis for the decision. Either party still has the power to file a motion to correct a clerical error. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Gayle Mayfield-Venieris, Esq., Mayfield Bustarde, LLP, 462 Stevens Ave., Suite 303, Solana Beach, CA 92075, (858) 793-8090 RESPONSIBLE FLOOR DELEGATE: Melissa L. Bustarde, Esq.

COUNTERARGUMENTS TO RESOLUTION 11-02-2015 SACRAMENTO COUNTY BAR ASSOCIATION If a judgment is entered because the court applied an incorrect or erroneous basis, the person against whom that judgment was entered should be able to challenge that improper judgment without having to incur the expense and time required for an appeal. Such a judgment should not stand. Additionally, because only defendants can appeal in small claims courts, this resolution would eliminate the only remedy a plaintiff has when the judgment is based on an incorrect or erroneous legal basis.

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RESOLUTION 11-03-2015 DIGEST Civil Procedure: Limits Review of Anti-SLAPP Rulings to Discretionary Writs Amends Code of Civil Procedure sections 425.16, 425.17 and 904.1 to provide that review of Anti-SLAPP rulings would be limited to discretionary writs. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Code of Civil Procedure sections 425.16, 425.17 and 904.1 to provide that review of Anti-SLAPP rulings would be limited to discretionary writs. This resolution should be disapproved because its language is contradictory and it eliminates critical rights to review by appeal. Code of Civil Procedure section 425.16, et seq., protects against strategic lawsuits against public participation (anti-SLAPP). Recognizing the litigation itself causes the harm, the anti-SLAPP statute provides an expedient means of disposing of these suits designed to chill free speech and petitioning activities. Code of Civil Procedure section 425.17 removes certain types of cases and claims from anti-SLAPP protections, namely those involving commercial speech and public interest litigation. As part of the intended expediency, orders granting or denying anti-SLAPP motions are directly appealable. (Code Civ. Proc., §§ 425.16, subd. (i), 904.1, subd. (a)(13).) However, orders finding claims exempted from anti-SLAPP protections are not appealable. (Code Civ. Proc., § 425.17, subd. (e).) This resolution seeks to eliminate the right of direct appellate review of anti-SLAPP orders, but it is unclear whether its language would limit the means of review to discretionary writs only, or whether it would require a writ petition as a prerequisite to any further review by appeal. The language does not comport with similar instances where the intent is to limit appellate review to a discretionary writ. (See, e.g., Code Civ. Proc., §§ 170.3, subd. (d) [disqualification orders], 437c, subd. (m)(1) [order denying msj/msa]; 877.6, subd. (e) [orders on good faith settlement determination].) The unclear and potentially contradictory language will cause confusion. (Compare Maryland Cas. Co. v. Andreini Co. of S. Cal. (2000) 81 Cal.App.4th 1413, 1420 [writ required to preserve good faith determination for later review on appeal from final judgment]; with Main Fiber Products, Inc. v. Morgan & Franz Ins. Agency (1999) 73 Cal.App.4th 1130, 1134 [declining to decide whether review by appeal allowed after summary denial of writ]; Wilshire Insurance Company v. Tuff Boy Holding, Inc. (2001) 86 Cal.App.4th 627, 634-637 [writ review exclusive means of challenging good faith determination].)

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More important, eliminating the right of appellate review for all is not an appropriate means to address meritless and frivolous appeals by some. First, it would remove one of the key methods of protection the statute is intended to provide – expedient disposition of SLAPP litigation. Second, transferring the appellate review function to a writ proceeding may not reduce court workload in reviewing anti-SLAPP orders, and it may in fact increase the appellate court’s burden by requiring immediate evaluation of all petitions. When cases proceed by appeal, the longer process gives time for a number of cases to drop out of the system by dismissal or settlement, and the court can review the remaining appeals in a more orderly fashion. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Code of Civil Procedure sections 425.16, 425.17, and 904.1, to read as follows: § 425.16 (a) The Legislature finds and declares that there has been a disturbing increase in lawsuits 1 brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and 2 petition for the redress of grievances. The Legislature finds and declares that it is in the public 3 interest to encourage continued participation in matters of public significance, and that this 4 participation should not be chilled through abuse of the judicial process. To this end, this section 5 shall be construed broadly. 6 (b) (1) A cause of action against a person arising from any act of that person in 7 furtherance of the person's right of petition or free speech under the United States Constitution or 8 the California Constitution in connection with a public issue shall be subject to a special motion 9 to strike, unless the court determines that the plaintiff has established that there is a probability 10 that the plaintiff will prevail on the claim. 11 (2) In making its determination, the court shall consider the pleadings, and supporting 12 and opposing affidavits stating the facts upon which the liability or defense is based. 13 (3) If the court determines that the plaintiff has established a probability that he or she 14 will prevail on the claim, neither that determination nor the fact of that determination shall be 15 admissible in evidence at any later stage of the case, or in any subsequent action, and no burden 16 of proof or degree of proof otherwise applicable shall be affected by that determination in any 17 later stage of the case or in any subsequent proceeding. 18 (c) (1) Except as provided in paragraph (2), in any action subject to subdivision (b), a 19 prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's 20 fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to 21 cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff 22 prevailing on the motion, pursuant to Section 128.5. 23 (2) A defendant who prevails on a special motion to strike in an action subject to 24 paragraph (1) shall not be entitled to attorney's fees and costs if that cause of action is brought 25 pursuant to Section 6259, 11130, 11130.3, 54960, or 54960.1 of the Government Code. Nothing 26 in this paragraph shall be construed to prevent a prevailing defendant from recovering attorney's 27 fees and costs pursuant to subdivision (d) of Section 6259, 11130.5, or 54690.5. 28

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(d) This section shall not apply to any enforcement action brought in the name of the 29 people of the State of California by the Attorney General, district attorney, or city attorney, 30 acting as a public prosecutor. 31 (e) As used in this section, "act in furtherance of a person's right of petition or free speech 32 under the United States or California Constitution in connection with a public issue" includes: 33 (1) any written or oral statement or writing made before a legislative, executive, or judicial 34 proceeding, or any other official proceeding authorized by law, (2) any written or oral statement 35 or writing made in connection with an issue under consideration or review by a legislative, 36 executive, or judicial body, or any other official proceeding authorized by law, (3) any written or 37 oral statement or writing made in a place open to the public or a public forum in connection with 38 an issue of public interest, or (4) any other conduct in furtherance of the exercise of the 39 constitutional right of petition or the constitutional right of free speech in connection with a 40 public issue or an issue of public interest. 41 (f) The special motion may be filed within 60 days of the service of the complaint or, in 42 the court's discretion, at any later time upon terms it deems proper. The motion shall be 43 scheduled by the clerk of the court for a hearing not more than 30 days after the service of the 44 motion unless the docket conditions of the court require a later hearing. 45 (g) All discovery proceedings in the action shall be stayed upon the filing of a notice of 46 motion made pursuant to this section. The stay of discovery shall remain in effect until notice of 47 entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, 48 may order that specified discovery be conducted notwithstanding this subdivision. 49 (h) For purposes of this section, "complaint" includes "cross-complaint" and "petition," 50 "plaintiff" includes "cross-complainant" and "petitioner," and "defendant" includes "cross-51 defendant" and "respondent." 52 (i) An order granting or denying a special motion to strike shall be may be appealable 53 under Section 904.1 appealed within 20 days after service of a written notice of entry of the 54 order, by petitioning an appropriate reviewing court for a peremptory writ. 55 (j) (1) Any party who files a special motion to strike pursuant to this section, and any 56 party who files an opposition to a special motion to strike, shall, promptly upon so filing, 57 transmit to the Judicial Council, by e-mail or facsimile, a copy of the endorsed, filed caption 58 page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and 59 a conformed copy of any order issued pursuant to this section, including any order granting or 60 denying a special motion to strike, discovery, or fees. 61 (2) The Judicial Council shall maintain a public record of information transmitted 62 pursuant to this subdivision for at least three years, and may store the information on microfilm 63 or other appropriate electronic media. 64 65 §425.17 66 (a) The Legislature finds and declares that there has been a disturbing abuse of Section 67 425.16, the California Anti-SLAPP Law, which has undermined the exercise of the constitutional 68 rights of freedom of speech and petition for the redress of grievances, contrary to the purpose 69 and intent of Section 425.16. The Legislature finds and declares that it is in the public interest to 70 encourage continued participation in matters of public significance, and that this participation 71 should not be chilled through abuse of the judicial process or Section 425.16. 72 (b) Section 425.16 does not apply to any action brought solely in the public interest or on 73 behalf of the general public if all of the following conditions exist: 74

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(1) The plaintiff does not seek any relief greater than or different from the relief sought 75 for the general public or a class of which the plaintiff is a member. A claim for attorney's fees, 76 costs, or penalties does not constitute greater or different relief for purposes of this subdivision. 77 (2) The action, if successful, would enforce an important right affecting the public 78 interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the 79 general public or a large class of persons. 80 (3) Private enforcement is necessary and places a disproportionate financial burden on the 81 plaintiff in relation to the plaintiff's stake in the matter. 82 (c) Section 425.16 does not apply to any cause of action brought against a person 83 primarily engaged in the business of selling or leasing goods or services, including, but not 84 limited to, insurance, securities, or financial instruments, arising from any statement or conduct 85 by that person if both of the following conditions exist: 86 (1) The statement or conduct consists of representations of fact about that person's or a 87 business competitor's business operations, goods, or services, that is made for the purpose of 88 obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, 89 the person's goods or services, or the statement or conduct was made in the course of delivering 90 the person's goods or services. 91 (2) The intended audience is an actual or potential buyer or customer, or a person likely 92 to repeat the statement to, or otherwise influence, an actual or potential buyer or customer, or the 93 statement or conduct arose out of or within the context of a regulatory approval process, 94 proceeding, or investigation, except where the statement or conduct was made by a telephone 95 corporation in the course of a proceeding before the California Public Utilities Commission and 96 is the subject of a lawsuit brought by a competitor, notwithstanding that the conduct or statement 97 concerns an important public issue. 98 (d) Subdivisions (b) and (c) do not apply to any of the following: 99 (1) Any person enumerated in subdivision (b) of Section 2 of Article I of the California 100 Constitution or Section 1070 of the Evidence Code, or any person engaged in the dissemination 101 of ideas or expression in any book or academic journal, while engaged in the gathering, 102 receiving, or processing of information for communication to the public. 103 (2) Any action against any person or entity based upon the creation, dissemination, 104 exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, 105 or artistic work, including, but not limited to, a motion picture or television program, or an article 106 published in a newspaper or magazine of general circulation. 107 (3) Any nonprofit organization that receives more than 50 percent of its annual revenues 108 from federal, state, or local government grants, awards, programs, or reimbursements for 109 services rendered. 110 (e) If any trial court denies a special motion to strike on the grounds that the action or 111 cause of action is exempt pursuant to this section, the appeal provisions in subdivision (i) of 112 Section 425.16 and paragraph (13) of subdivision (a) of Section 904.1 do not apply to that action 113 or cause of action. 114 115 §904.1 116 (a) An appeal, other than in a limited civil case, is to the court of appeal. An appeal, other 117 than in a limited civil case, may be taken from any of the following: 118 119

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(1) From a judgment, except (A) an interlocutory judgment, other than as provided in 120 paragraphs (8), (9), and (11), or (B) a judgment of contempt that is made final and conclusive by 121 Section 1222. 122 (2) From an order made after a judgment made appealable by paragraph (1). 123 (3) From an order granting a motion to quash service of summons or granting a motion to 124 stay the action on the ground of inconvenient forum, or from a written order of dismissal under 125 Section 581d following an order granting a motion to dismiss the action on the ground of 126 inconvenient forum. 127 (4) From an order granting a new trial or denying a motion for judgment notwithstanding 128 the verdict. 129 (5) From an order discharging or refusing to discharge an attachment or granting a right 130 to attach order. 131 (6) From an order granting or dissolving an injunction, or refusing to grant or dissolve an 132 injunction. 133 (7) From an order appointing a receiver. 134 (8) From an interlocutory judgment, order, or decree, hereafter made or entered in an 135 action to redeem real or personal property from a mortgage thereof, or a lien thereon, 136 determining the right to redeem and directing an accounting. 137 (9) From an interlocutory judgment in an action for partition determining the rights and 138 interests of the respective parties and directing partition to be made. 139 (10) From an order made appealable by the provisions of the Probate Code or the Family 140 Code. 141 (11) From an interlocutory judgment directing payment of monetary sanctions by a party 142 or an attorney for a party if the amount exceeds five thousand dollars ($5,000). 143 (12) From an order directing payment of monetary sanctions by a party or an attorney for 144 a party if the amount exceeds five thousand dollars ($5,000). 145 (13) From an order granting or denying a special motion to strike under Section 425.16. 146 (b) Sanction orders or judgments of five thousand dollars ($5,000) or less against a party 147 or an attorney for a party may be reviewed on an appeal by that party after entry of final 148 judgment in the main action, or, at the discretion of the court of appeal, may be reviewed upon 149 petition for an extraordinary writ.” 150

(Proposed new language underlined; language to be deleted stricken) PROPONENT: California Society of Entertainment Lawyers. STATEMENT OF REASONS The Problem: “something is wrong with this picture, and we hope the Legislature will see fit to change it.” Grewal v. Jammu (2011) 191 Cal.App.4th 977, 1003. Justice Richman wrote the foregoing words referring to the problem posed by the plague of “nonmeritorious appeals by defendants who lost anti-SLAPP motions.” Id. The Court of Appeals has noted with alarm the profusion of anti-SLAPP appeals, “no letup seems in sight, as one cannot pick up a volume of the official reports without finding an anti-SLAPP case. Or four.” Id. at 998. The appellate courts are telling us loud and clear that they are sick of all the meritless anti-SLAPP motions which are brought, even though the people bringing them know they are going to lose, in order to

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delay proceedings for a couple years, or longer, while the automatic appeal works its way through appellate review. The Solution: This resolution would fix the problem of cases being delayed for years by replacing an automatic right of appeal of anti-SLAPP motions with discretionary review by writ. The language being proposed here for appellate review of all anti-SLAPP motions is similar to that already used at Cal. Code Civ. Proc. § 425.18(g), which deals with the standard of appellate review applicable for when an anti-SLAPP special motion to strike is filed against a SLAPPback action. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION: Similar to 08-03-2014, which passed the conference and is currently being worked on in Sacramento, which would make it easier for plaintiffs who prevail in defeating meritless anti-SLAPP motions to recover their attorneys’ fees. AUTHOR AND/OR PERMANENT CONTACT: Morgan E. Pietz, The Law Offices of Gerard Fox, 1880 Century Park East, Suite 1004, Los Angeles, CA 90067, (310) 441-0500, mpietz@foxtriallawyers.com. RESPONSIBLE FLOOR DELEGATE: Steven Lowe and Kris LeFan, Lowe & Associates, P.C., 11400 Olympic Boulevard, Suite 640, Los Angeles, CA 90064, (310) 477-5811, steven@lowelaw.com, kris@lowelaw.com.

COUNTERARGUMENTS TO RESOLUTION 11-03-2015 SAN DIEGO COUNTY BAR ASSOCIATION The SDCBA Delegation urges disapproval of Resolution 11-03-2015. This resolution should be disapproved because it attempts to solve a problem that does not exist. SLAPP motions are a large portion of the case load of both trial and appellate courts. While the number of SLAPP cases may be significant, there is little evidence that the SLAPP caseload has delayed resolution beyond the limit of the courts to cope. Writ proceedings, on the other hand, have built-in procedural deadlines that accelerate the processing of the case, placing substantial time burdens on both court and counsel. There is no urgency in reviewing a SLAPP motion that requires the expedience of a writ. Further, the resolution also leaves open the strong likelihood that its language will be interpreted as equally limiting a losing plaintiff to review by writ when an order granting an anti-SLAPP motion completely disposes of the case. BAR ASSOCIATION OF NORTHERN SAN DIEGO COUNTY

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We do not agree that the solution to frivolous appeals of denials of frivolous special motions to strike is to deprive all parties of a right to appeal the order. That would appear to be the effect of the resolution as it is currently framed by the proponent, as it amends subdivision (i) as to both "granting or denying a special motion to strike," hence would also deny the plaintiff in the action the right to appeal an order favoring a defendant. Some motions may be grossly frivolous, as in Grewal v. Jammu (2011) 191 Cal.App.4th 977. That is the reason Code of Civil Procedure section 425.16, subdivision (c)(1) includes a provision for fees to prevailing plaintiffs in such cases, which would last all the way through appeal. However, not all such motions are frivolous. Please see, e.g., Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450 where the very same panel of the First District Court of Appeal that issued the Grewal opinion subsequently reversed a trial court denial of a special motion to strike brought by the defendants. The fundamental purpose of the special motion to strike process is to enable inappropriately sued defendants to get out of the action at an early stage. Subdivision (a) of section 425.16 provides that it is to be construed broadly, which is specifically for the benefit of defendants. We also have the concern that the imposition of the discretionary writ procedure either provides, or would at least imply, that no ruling connected with a special motion to strike would ever be appealable, even at the end of a case, except when an adverse judgment was suffered.

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RESOLUTION 11-04-2015 DIGEST Entry of Judgment: Service of Notice Amends Code of Civil Procedure section 664.5 to clarify that service of a notice of entry of judgment may be made by mail or by personal service. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Code of Civil Procedure section 664.5 to clarify that service of a notice of entry of judgment may be made by mail or by personal service. This resolution should be disapproved because service of the notice of entry of judgment by mail does not extend the time to file a notice of appeal and therefore personal service will not, as the proponent asserts, affect the commencement of the time within which a party can appeal the judgment. While at first glance it may seem desirable that a person preparing a notice of entry of order or judgment should have the option of either mailing the notice or personally serving it, there are in fact sound reasons why it is preferable that it be mailed. Mail service requires the furnishing of a proof of service establishing the date of mailing (see Cal. Rules of Court, rule 8.104(a)), which assists the recipient in calendaring any further actions, such as an appeal). Personal service does not, and a busy recipient might have no easy reference point for calendaring future actions. Moreover, personal service of a notice of entry of order or judgment will provide no advantage over mail service because mail service immediately starts the clock for filing an appeal. This is because section 1013, which extends the time for responding to many documents served by mail and other similar means, does not apply to a notice of appeal. (See Code Civ. Proc., § 1013 subds. (a), (c), (e); see also, Cal. Rules of Court, rule 8.104(b); see also, InSyst, Ltd. v. Applied Materials, Inc. (2009) 170 Cal.App.4th 1129, 1134-1135.) Therefore, the proposed amendment may result in more personal service of these notices, and may result in confusion as to when the notice was in fact served. TEXT OF RESOLUTION

RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Code of Civil Procedure Code section 664.5 to read as follows:

§664.5 (a) In any contested action or special proceeding other than a small claims action or an 1 action or proceeding in which a prevailing party is not represented by counsel, the party 2 submitting an order or judgment for entry shall prepare and mail or personally serve a copy of 3 the notice of entry of judgment to all parties who have appeared in the action or proceeding and 4 shall file with the court the original notice of entry of judgment together with the proof of service 5

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by mail. This subdivision does not apply in a proceeding for dissolution of marriage, for nullity 6 of marriage, or for legal separation. 7 (b) Promptly upon entry of judgment in a contested action or special proceeding in 8 which a prevailing party is not represented by counsel, the clerk of the court shall mail notice of 9 entry of judgment to all parties who have appeared in the action or special proceeding and shall 10 execute a certificate of such mailing and place it in the court’s file in the cause. 11 (c) For purposes of this section, “judgment” includes any judgment, decree, or signed 12 order from which an appeal lies. 13 (d) Upon order of the court in any action or special proceeding, the clerk shall mail 14 notice of entry of any judgment or ruling, whether or not appealable. 15 (e) The Judicial Council shall, by January 1, 1999, adopt a rule of court for the purposes 16 of providing that, upon entry of judgment in a contested action or special proceeding in which a 17 state statute or regulation has been declared unconstitutional by the court, the Attorney General 18 is promptly notified of the judgment and that a certificate of that mailing is placed in the court’s 19 file in the cause. 20

(Proposed new language underlined; language to be deleted stricken)

PROPONENT: Bar Association of Northern San Diego County

STATEMENT OF REASONS

The Problem: This statute causes confusion as to whether the order or judgment for entry can be personally served (which can be advantageous as it starts the clock for filing an appeal).

The Solution: This simply removes references to serving by mail.

IMPACT STATEMENT:

This proposed resolution does not affect any other law, statute or rule.

AUTHOR AND/OR PERMANENT CONTACT: Melissa L. Bustarde, Esq., Mayfield Bustarde, LLP, 462 Stevens Ave., Suite 303, Solana Beach, CA 92075, (858) 793-8090

RESPONSIBLE FLOOR DELEGATE: Melissa L. Bustarde, Esq.

11-05-2015 Page 1 of 3

RESOLUTION 11-05-2015

DIGEST Civil Procedure: Motions for Reconsideration Pending at Entry of Judgment Amends Code of Civil Procedure section 1008 to permit a trial court to hear a motion for reconsideration already pending at the time judgment is entered. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE WITH RECOMMENDED AMENDMENTS History: Similar to Resolution 13-09-2009, which was approved in principle, and subsequently enacted into law in 2011. Reasons: This resolution amends Code of Civil Procedure section 1008 to permit a trial court to hear a motion for reconsideration already pending at the time judgment is entered. This resolution should be approved in principle with the recommended amendment (to add the word “in” to the proposed statutory text) because a trial court should be permitted to rule on motions for reconsideration pending at the time judgment is entered, in the same manner that trial courts are permitted to rule on other post-judgment motions brought within the same time frame. Under current case law, trial courts lose jurisdiction to rule on pending motions for reconsideration when they enter a judgment in the case. (APRI Ins. Co. S.A. v. Superior Court (1999) 76 Cal.App.4th 176, 181-182.) Courts have alternatively construed the entry of judgment as an implied denial of any pending reconsideration motion. (Nave v. Taggart (1995) 34 Cal.App.4th 1173, 1177.) This creates a trap for the unwary who have filed a motion for reconsideration and have a hearing date pending when judgment is entered because they would have to be familiar with this case law and incur the expense of requesting the court not enter any proposed judgment until after the hearing. At least one court has attempted to mitigate this trap by holding the trial court has discretion to treat a motion for reconsideration from an order granting summary judgment, which was pending at entry of judgment, as a new trial motion and thereafter rule on the motion within the jurisdictional time limits for ruling on a new trial motion. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193-194.) This resolution resolves the problem by allowing a trial court to rule on a motion for reconsideration that was pending before judgment is entered. This allows the motion to be resolved on the merits, rather than simply resulting in a denial because of an arbitrary loss of jurisdiction. If enacted, this amendment would harmonize a trial court’s jurisdiction to hear motions for reconsideration with its jurisdiction to rule on other post-judgment motions. This will, in turn, ensure that all issues in the case are brought before the trial court, and adjudicated on the merits, so that any appeals may encompass all issues in the case on a substantive level. This resolution is related to Resolution 06-11-2015.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend Code of Civil Procedure section 1008, to read as follows: §1008 (a) When an application for an order has been made to a judge, or to a court, and refused 1 in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the 2 order may, within 10 days after service upon the party of written notice of entry of the order and 3 based upon new or different facts, circumstances, or law, make application to the same judge or 4 court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. 5 The party making the application shall state by affidavit what application was made before, when 6 and to what judge, what order or decisions were made, and what new or different facts, 7 circumstances, or law are claimed to be shown. 8 (b) A party who originally made an application for an order which was refused in whole 9 or part, or granted conditionally or on terms, may make a subsequent application for the same 10 order upon new or different facts, circumstances, or law, in which case it shall be shown by 11 affidavit what application was made before, when and to what judge, what order or decisions 12 were made, and what new or different facts, circumstances, or law are claimed to be shown. For 13 a failure to comply with this subdivision, any order made on a subsequent application may be 14 revoked or set aside on ex parte motion. 15 (c) If a court at any time determines that there has been a change of law that warrants it to 16 reconsider a prior order it entered, it may do so on its own motion and enter a different order. 17 (d) A violation of this section may be punished as a contempt and with sanctions as 18 allowed by Section 128.7. In addition, an order made contrary to this section may be revoked by 19 the judge or commissioner who made it, or vacated by a judge of the court in which the action or 20 proceeding is pending. 21 (e) This section specifies the court’s jurisdiction with regard to applications for 22 reconsideration of its orders and renewals of previous motions, and applies to all applications to 23 reconsider any order of a judge or court, or for the renewal of a previous motion, whether the 24 order deciding the previous matter or motion is interim or final. No application to reconsider any 25 order or for the renewal of a previous motion may be considered by any judge or court unless 26 made according to this section. 27 (f) For the purposes of this section, an alleged new or different law shall not include a 28 later enacted statute without a retroactive application. 29 (g) An order denying a motion for reconsideration made pursuant to subdivision (a) is not 30 separately appealable. However, if the order that was the subject of a motion for reconsideration 31 is appealable, the denial of the motion for reconsideration is reviewable as part of an appeal from 32 that order. 33 (h) This section applies to all applications for interim orders. 34 (i) The entry of a judgment shall not deprive the court of jurisdiction to rule on a motion 35 for reconsideration brought under this section and pending when judgment is entered, nor shall 36 entry of judgment operate as a denial of a motion for reconsideration brought under this section. 37 The power of the court to rule on a motion brought under this section which is pending when 38 judgment is entered shall expire as specified in Section 660 of this code. 39

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(Proposed new language underlined; language to be deleted stricken.) PROPONENT: San Diego County Bar Association STATEMENT OF REASONS The Problem: Under current case law, trial courts lose jurisdiction to rule on pending motions for reconsideration when they enter a judgment in the case in relation to the party bringing the motion. (See APRI Ins. Co. S.A. v. Superior Court (1999) 76 Cal.App.4th 176, 181-182.) Courts have alternatively construed the entry of judgment as an implied denial of any pending reconsideration motion. (Nave v. Taggart (1995) 34 Cal. App. 4th 1173, 1177.) This creates a trap for the unwary who have filed a motion for reconsideration and have a hearing date pending when judgment is entered because they would have to be familiar with this case law and incur the expense of requesting the court not enter any proposed judgment until after the hearing. At least one court has attempted to mitigate this trap by holding the trial court has discretion to treat a motion for reconsideration from an order granting summary judgment pending at entry of judgment, as a new trial motion and thereafter rule on the motion within the jurisdictional time limits for ruling on a new trial motion. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193-194.) This Solution: This Resolution resolves the problem by providing that the trial court does not lose jurisdiction to decide motions for reconsideration that are pending before the court simply because judgment is entered. This benefits the party seeking reconsideration by avoiding a current trap for the unwary and by helping to ensure the party’s reconsideration motion is disposed of on the merits. This benefits the prevailing party by allowing for speedy entry of judgment so that rights to post-judgment interest on any awards begin to accrue. This Resolution solves the problem of implied denial by specifying that entry of judgment does not operate as a denial of any pending reconsideration motion. This Resolution also harmonizes the court’s extended jurisdiction to hear reconsideration motions by limiting the power to rule on the motion to the same time frame as other post-judgment motions. IMPACT STATEMENT The proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Darin L. Wessel, Manning & Kass, Ellrod, Ramirez, Trester, LLP, 550 W. C Street, Suite 1900, San Diego, CA 92101; (619) 515-0269; dlw@manningllp.com. RESPONSIBLE FLOOR DELEGATE: Darin L. Wessel

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RESOLUTION 11-06-2015 DIGEST Government: Accrual of Interest in Judgments Against the State of California Amends Government Code section 965.5 to allow for interest to run at the legal rate on judgments against the State of California upon the entry of the judgment. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found Reasons: This resolution amends Government Code section 965.5 to allow for interest at the legal rate of interest to run on judgments against the State of California upon the entry of the judgment. This resolution should be approved in principle because there are no valid grounds for the double standard created by the current scheme, which allows the state to avoid paying interest over the same duration and at the same rates as other money judgments in the state. The current statutory scheme provides that judgments obtained against the State of California do not accrue interest for 180 days after entry of judgment, unlike other judgments which are payable upon entry of the judgment. Additionally, judgments obtained against the State of California accrue at a different rate from other money judgments. Currently, the rate at which the state must pay interest is significantly lower than other entities (the proponent believes the current rate is the equivalent of 2.12%). The state may be reducing capital outlays through the current scheme which allows for a different period within which to pay a money judgment, as well as a different rate of interest for the payments of such a judgment. Nevertheless, the state should be held to the same standards as other parties in litigation, including being liable for interest at the legal rate and upon entry of judgment until the judgment is paid in full. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Government Code section 965.5 to read as follows: §965.5 (a) A judgment for the payment of money against the state or a state agency is 1 enforceable until 10 years after the time the judgment becomes final or, if the judgment is 2 payable in installments, until 10 years after the final installment becomes due. 3 (b) A judgment for the payment of money against the state or a state agency is not 4 enforceable under Title 9 (commencing with Section 680.010) of Part 2 of the Code of Civil 5 Procedure, but is enforceable under this chapter. 6 (c) Interest on the amount of a judgment or settlement for the payment of moneys against 7 the state shall commence in accordance with Code of Civil Procedure section 685.020 to accrue 8 180 days from the date of the final judgment or settlement. 9

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(d) Unless another statute provides a different interest rate, interest on a tax or fee 10 judgment for the payment of moneys against the state shall accrue in accordance with Code of 11 Civil Procedure section 685.010at a rate equal to the weekly average one year constant maturity 12 United States Treasury yield at the time of the judgment plus 2 percent, but shall not exceed 7 13 percent per annum. 14 (e) Subdivisions (c) and (d) shall not apply to any claim approved by the California 15 Victim Compensation and Government Claims Board. 16

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem: The State of California has created special rules for itself when it has been found liable for violation of its own laws. Under the current statutory scheme, any judgments obtained against the State of California do not accrue interest for 180 days after entry of judgment, and even then, it is at a rate that is currently the equivalent of 2.12%! The State should be held to the same standards as every other party in litigation and should be liable for interest at the legal rate upon entry of judgment until paid in full.. The Solution: This modifies the statute to allow for interest to run starting from the date of entry of judgment and at the legal rate that every other litigant has to pay. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Gayle Mayfield-Venieris, Esq., Mayfield Bustarde, LLP, 462 Stevens Ave., Suite 303, Solana Beach, CA 92075, (858) 793-8090 RESPONSIBLE FLOOR DELEGATE: Melissa L. Bustarde, Esq.

11-07-2015 Page 1 of 5

RESOLUTION 11-07-2015 DIGEST Insurance: Increase Mandatory Minimum Automobile Liability Limits Amends California Vehicle Code section 16056 to increase the mandatory minimum automobile liability coverage from $15,000/$30,000/$5000 to $50,000/$100,000/$25,000. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: Similar to Resolutions 16-14-2003, 16-15-2003, 12-01-2006, and 10-01-2009, all of which were approved in principle. Reasons: This resolution amends California Vehicle Code section 16056 to increase the mandatory minimum automobile liability coverage from $15,000/$30,000/$5000 to $50,000/$100,000/ $25,000. This resolution should be approved in principle because California’s mandatory minimum automobile liability limits need to be increased to provide more realistic coverage for the personal injury and property damage usually caused in an accident, and to bring those limits into line with the enhanced compulsory protection required by the vast majority of other states. California is among about a half dozen states with 15/30/5-10 basic required limits. Apart from two states with 50/100/25 compulsory limits, the personal injury/property damage coverage requirement in other states range 20-25/50-65/10-100. The additional premium to pay for the increased limits proposed in the resolution should not prove substantially more than is currently charged by automobile liability insurers for 15/30/5 coverage. While it will definitely cost more, the cost is worth the responsibility and protection which will inure for both the negligent driver and injured or damaged victim of the accident, given these higher, more realistic limits. Data suggest that regardless of the minimum liability limits requirement, the percentage of uninsured motorists will remain at a rough constant of 14% of the drivers—though in California, with the largest percentage of uninsured drivers, estimates for this cohort actually range from 14 to 25%. In other words, the increase in rates should not produce a higher number of motorists going without insurance. The state’s low cost coverage for the poor will remain available even under this proposal. TEXT OF RESOLUTION RESOLVED, that the Conference of California Bar Associations recommends that legislation be sponsored to amend California Vehicle Code Section 16056 to read as follows: §16056 (a) No policy or bond shall be effective under Section 16054 unless issued by an 1 insurance company or surety company admitted to do business in this state by the Insurance 2 Commissioner, except as provided in subdivision (b) of this section, nor unless the policy or 3

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bond is subject, if the accident has resulted in bodily injury or death, to a limit, exclusive of 4 interest and costs, of not less than fifteen thousand dollars ($15,000) fifty thousand dollars 5 ($50,000) because of bodily injury to or death of one person in any one accident and, subject to 6 that limit for one person, to a limit of not less than thirty thousand dollars ($30,000) one hundred 7 thousand dollars ($100,000) because of bodily injury to or death of two or more persons in any 8 one accident, and, if the accident has resulted in injury to, or destruction of property, to a limit of 9 not less than five thousand dollars ($5,000) twenty-five thousand dollars ($25,000) because of 10 injury to or destruction of property of others in any one accident. 11 (b) No policy or bond shall be effective under Section 16054 with respect to any vehicle 12 which was not registered in this state or was a vehicle which was registered elsewhere than in 13 this state at the effective date of the policy or bond or the most recent renewal thereof, unless the 14 insurance company or surety company issuing the policy or bond is admitted to do business in 15 this state, or if the company is not admitted to do business in this state, unless it executes a power 16 of attorney authorizing the department to accept service on its behalf of notice or process in any 17 action upon the policy or bond arising out of an accident mentioned in subdivision (a). 18 (c) Any nonresident driver whose driving privilege has been suspended or revoked based 19 upon an action that requires proof of financial responsibility may, in lieu of providing a 20 certificate of insurance from a company admitted to do business in California, provide a written 21 certificate of proof of financial responsibility that is satisfactory to the department, covers the 22 operation of a vehicle in this state, meets the liability requirements of this section, and is from a 23 company that is admitted to do business in that person's state of residence. 24

(Proposed new language underlined; language to be deleted stricken)

PROPONENT: Bar Association of San Francisco STATEMENT OF REASONS The Problem: California’s motor vehicle liability insurance responsibility limits were mandated in 1967 and have never been adjusted. California law currently requires drivers to have a minimum of $15,000 in coverage for injuries to or death of one person and $30,000 for two or more persons in any one accident. The law also requires a minimum of $5,000 in coverage for property damage. Minimum auto financial responsibility limits should ensure that an injured party is made whole again after an accident, but with California’s current minimum coverage levels, this is not possible. Our auto financial responsibility law, Cal.Vehicle Code § 16056, was put in place to enforce personal responsibility. In other words, a driver must be capable of providing the compensation necessary to make an injured party whole again after an accident, regardless of the size and scope of the accident. However, our current minimum limits in California of 15/30/05 are dangerously low given the changed conditions since 1967. An increase in the minimum liability limits would provide all California residents with a much better, and safer, level of protection.

In 1967 when the current limits were established, a loaf of bread cost $0.22, the cost of a new home was $34,600 and a ’67 Mustang cost $2,200. In addition to costs for vehicle repairs, medical services, and emergency services have also increased considerably over the last 47 years. According to the United States Department of Labor, Bureau of Labor Statistics, $15,000

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in 1967 has the same buying power as $105,000 today; $30,000 has the buying power of $210,000 [http://www.bls.gov/data/inflation_ calculator.htm]. The increases proposed by this resolution take the limits to half of where they should be in order to keep up with inflation. Nevertheless, a raise in the limits will increase the chance that an innocent person will be adequately compensated when injured by a person who has purchased only the minimal coverage. California ranks near the bottom when comparing auto limits in other states. An increase in California’s limits would make us more in line with national averages. 1. Alaska 50/100/25 2. Maine 50/100/25 3. Texas 30/60/25 4. North Carolina 30/60/25 5. Maryland 30/60/15 6. Minnesota 30/60/10 7. Utah 25/65/15 8. Alabama 25/50/25 9. Georgia 25/50/25 10. Mississippi 25/50/25 (offers vehicle owners an option to post bonds or cash) 11. Nebraska 25/50/25 12. North Dakota 25/50/25 13. Ohio 25/50/25 14. Oklahoma 25/50/25 15. Rhode Island 25/50/25 16. South Carolina 25/50/25 17. South Dakota 25/50/25

18. Virginia 25/50/20 (and offers uninsured motor vehicle fee) 19. Wyoming 25/50/20 20. Oregon 25/50/20 21. Arkansas 25/50/25 22. Colorado 25/50/15 23. Idaho 25/50/15 24. Tennessee 25/50/15 25. Indiana 25/50/10 26. Kansas 25/50/10 27. Kentucky 25/50/10 28. Missouri 25/50/10 29. Montana 25/50/10 30. New Mexico 25/50/10 31. New York 25/50/10* (policyholders must also have 50/100 for wrongful death coverage) 32. Vermont 25/50/10 33. Washington 25/50/10 34. Wisconsin 25/50/10

35. *D.C. 25/50/10 36. Illinois 20/40/15 37. Iowa 20/40/15 38. Connecticut 20/40/10 39. Hawaii 20/40/10 40. Michigan 20/40/10 41. West Virginia 20/40/10 42. Massachusetts 20/40/5 43. Louisiana 15/30/25 44. Arizona 15/30/10 45. Delaware 15/3010 46. Nevada 15/30/10 47. Pennsylvania 15/30/5 48. New Jersey 15/30/5 49. California 15/30/5* (Low Cost Auto Limits are 10/20/03) 50. Florida 10/20/10* (Personal Injury Protection (PIP), or no-fault state)

The Solution: This resolution will increase the limits to account for inflation and put California in line with the national averages. IMPACT STATEMENT It is estimated that changing the limits will raise insurance rates by 10%. California has a low cost auto insurance program. Established by the Legislature in 1999, the program is designed to provide income eligible persons with liability insurance protection at affordable rates as a way to meet California's financial responsibility laws. The current LCAP insurance limits are $10,000/$20,000/$3,000. This resolution does not affect that program. 10 CCR § 2632.14. Policies Offered to Good Drivers and Nondiscrimination Effect: Where language references limits of 16056, it will mean $50,000/$100,000 instead of $15,000/$30,000.

13 CCR § 82.00 Uniform Insurance Card. Effect: Requirement that card state compliance with 16056 will mean, among other things, the limits are at least $50,000/$100,000 instead of $15,000/$30,000.

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California Public Utility Code Section § 5439. Satisfaction of financial responsibility requirements 16056 is referenced but this Section is not affected. CALIFORNIA INSURANCE CODE SECTIONS: 1861.15 Good driver discounts; minimum financial responsibility coverage policies Effect: Where language references limits of 16056, it will mean $50,000/$100,000 instead of $15,000/$30,000. § 11580.08. Disclosure of arrest record; prohibited as condition for issuance of policy – references description of insurance; no effect, even by reference 16056 is referenced but this Section is not affected. § 11580.1. Automobile liability insurance; required and optional provisions Effect: Where language references limits of 16056, it will mean $50,000/$100,000 instead of $15,000/$30,000. § 11580.2. Uninsured motorist endorsement or coverage; underinsured motorist coverage Effect: Where language references limits of 16056, it will mean $50,000/$100,000 instead of $15,000/$30,000. The minimum amounts of uninsured and underinsured motorists limits will be increased by reference. Subsection (m) requires uninsured motorist coverage to be offered with limits equal to the limits for bodily injury coverage but limits do not need to exceed $30,000/$60,000. These amounts will either need to be changed to $50,000/$100,000 or increased to a higher amount. § 11580.26. Required coverage; uninsured motor vehicles; property damage; prerequisites for payment; election not to accept coverage; vehicles insured for both property damage and collision; uninsured motor vehicle defined Effect: Where language references limits of 16056, it will mean $50,000/$100,000 instead of $15,000/$30,000. § 11580.9. Two or more policies covering insured who sells, repairs, etc., leases or rents, loads or unloads vehicles; person engaged in the business of a trucker; primary and excess coverage Effect: Where language references limits of 16056, it will mean $50,000/$100,000 instead of $15,000/$30,000. § 11629.71. Policy attributes 16056 is referenced but this Section is not affected. § 11629.8. Policy financial responsibility requirements 16056 is referenced but this Section is not affected. § 4000.37. Application for renewal of registration; proof of compliance with financial responsibility laws Effect: Where language references the requirements of 16056, it will mean $50,000/$100,000 instead of $15,000/$30,000.

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§ 12650. Application Effect: Where language references the requirements of 16056, it will mean $50,000/$100,000 instead of $15,000/$30,000. § 16002. Vehicle of employer; vehicle owned or operated by publicly owned or operated transit system Effect: Where language references the requirements of 16056, it will mean $50,000/$100,000 instead of $15,000/$30,000. § 16053. Certificate of self-insurance Effect: Where language references the amounts of 16056, it will mean $50,000/$100,000 instead of $15,000/$30,000. § 16054. Liability policy or bond Effect: Where language references the requirements of 16056, it will mean $50,000/$100,000 instead of $15,000/$30,000. § 16054.2. Other forms of financial responsibility Effect: Where language references the amount of 16056, it will mean $50,000/$100,000 instead of $15,000/$30,000. § 16431. Proof of financial responsibility; written certificate by insurer; sufficiency; exceptions Effect: Where language references the requirements of 16056, it will mean $50,000/$100,000 instead of $15,000/$30,000. CURRENT OR PRIOR RELATED LEGISLATION None AUTHOR AND/OR PERMANENT CONTACT: Andrew McDevitt, 650 California Street, 26th Floor, San Francisco, CA 94108, (415)981-7210, (415)391-6965, amcdevitt@walkuplawoffice.com RESPONSIBLE FLOOR DELEGATE: Andrew McDevitt

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RESOLUTION 12-01-2015 DIGEST Workers’ Compensation: Increasing Claims Limit for Injuries Caused by Willful Misconduct. Amends Labor Code section 4553 to increase the limits on workers’ compensation claims to $3,500 for costs and expenses when injuries are caused by serious and willful misconduct. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Labor Code section 4553 to increase the limits on workers’ compensation claims for costs and expenses when injuries are caused by a serious and willful misconduct. This resolution should be approved in principle because the costs and expenses of employee injuries have risen dramatically since this statute was last revised in 1982. With this resolution, in addition to receiving compensation for their injuries, an employee can recover their up to $3,500.00 if their injury was cause by serious and willful misconduct. The willful misconduct has to be serious and have been perpetrated by one of the following: (a) the employer or his representative, (b) a partner, managing representative or general superintendent of the partnership or (c) an executive, managing office or general superintendent of a corporation. Labor Code section 4553 was originally enacted in 1937 and revised in 1982. In that period of time, the costs and expenses of employee injuries have risen dramatically. Injuries caused by willful misconduct are, by the nature of the misconduct, likely to be more serious than an industrial injury cause by negligence. The proposed limit increase will encourage owners and supervising employees to be more attentive to reducing industrial injuries caused by willful misconduct. TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association s recommends that legislation be sponsored to amend California Labor Code section 4553 to read as follows: §4553 The amount of compensation otherwise recoverable shall be increased one-half, together 1 with costs and expenses not to exceed two hundred fifty dollars ($250)three thousand five 2 hundred dollars ($3,500), where the employee is injured by reason of the serious and willful 3 misconduct of any of the following: 4 (a) The employer, or his managing representative. 5 (b) If the employer is a partnership, on the part of one of the partners or a managing 6 representative or general superintendent thereof. 7

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(c) If the employer is a corporation, on the part of an executive, managing officer, or 8 general superintendent thereof. 9

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Los Angeles County Bar Association STATEMENT OF REASONS The Problem: The $250.00 cap as the top limit of costs that may be awarded in prosecuting a claim for employer serious and willful misconduct was left unchanged in previous amendments to Labor Code Section 4553. The $250.00 cap on costs and expenses in a claim for Serious and Willful Misconduct is inadequate and inhibits prosecution. The Solution: This amendment would raise the maximum limit of costs and expenses incurred in litigating employer serious and willful misconduct claims to a maximum of $3,500.00. Litigation costs in these cases far exceeds the statutory $250.00 cap. Costs incurred most often include the testimony of safety experts to prove the violation of the General Safety Order and its causal relationship to the injury. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Labor Code Section 4553 was initially exacted in 1937 with a statutory benefit of $2,500.00 and a maximum cost and expense limit of $250.00. The statutory benefit limit was subsequently raised to $10,000.00 without raising the cost and expense cap of $250.00. In 1982 the current statute was amended to delete the $10,000.00 maximum and to provide that the amount of compensation be one-half of the total indemnity benefit awarded. AUTHOR AND/OR PERMANENT CONTACT: Gerald Benezra, 1545 Wilshire Boulevard, Suite 606, Los Angeles, CA 90017, 213/484-2247, gcbenezra@att.net RESPONSIBLE FLOOR DELEGATE: Gerald Benezra

COUNTERARGUMENTS TO RESOLUTION 12-01-2015 SACRAMENTO COUNTY BAR ASSOCIATION Although it may be appropriate to raise the statutory cap for costs recoverable under Labor Code section 4553, a 14-fold increase seems excessive and arbitrary.

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RESOLUTION 12-02-2015 DIGEST Allow Employee to Use Full Amount of Available Sick Leave Under Paid Sick Leave Law Amends Labor Code section 246.5 to clarify that, under the Paid Sick Leave Law, employees may use the full amount of their accrued and available sick days for any of the covered purposes. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Labor Code section 246.5 to clarify that, under the Paid Sick Leave Law, employees may use the full amount of their accrued and available sick days for any of the covered purposes. This resolution should be approved in principle because it clarifies a possible conflict with the existing kin-care law, and is consistent with the statutory language. California’s “kin-care” law, set forth in Labor Code section 233, states that “[a]ny employer who provides sick leave for employees shall permit an employee to use in any calendar year the employee’s accrued and available sick leave entitlement, in an amount not less than the sick leave that would be accrued during six months at the employee’s then current rate of entitlement, to attend to an illness of a child, parent, spouse, or domestic partner of the employee.” On the other hand, the newly passed Paid Sick Leave law (formally known as the Healthy Workplaces, Healthy Families Act of 2014 and codified at Labor Code section 246, et seq.), while identifying the situations when employers must provide sick days to employees, makes no mention of how much sick leave can be used by an employee, nor does it mention or incorporate by reference the sick leave provision in the kin-care law. This resolution would fix this potential conflict between the two laws by explicitly permitting employees, after their 90th day of employment, to use their accrued and available sick days for any of the purposes identified in the Labor Code section 246.5. In addition, unlike the kin-care law which allows an employee to use only half of their annual entitlement, the Paid Sick Leave Law does not contain any such limitation. Thus, the resolution also makes clear that the employee can use all of his or her available or accrued sick leave. This resolution is related to Resolution 12-09-2015

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend Labor Code section 246.5, to read as follows: §246.5 (a) Upon the oral or written request of an employee, an employer shall allow an employee 1 to use the full amount of an employee’s accrued and available sick days beginning on the 90th 2 day of employment provide paid sick days for the following purposes: 3 (1) Diagnosis, care, or treatment of an existing health condition of, or preventive care for, 4 an employee or an employee’s family member. 5 (2) For an employee who is a victim of domestic violence, sexual assault, or stalking, the 6 purposes described in subdivision (c) of Section 230 and subdivision (a) of Section 230.1. 7

(Proposed new language underlined; language to be deleted stricken) PROPONENT: The Bar Association of San Francisco STATEMENT OF REASONS The Problem: There is an ambiguity in the Healthy Workplaces, Healthy Families Act of 2014 (“Paid Sick Leave law”) because it fails to address the pre-existing kin care law. Under the existing “kin care” law set forth in Labor Code section 233, “[a]ny employer who provides sick leave for employees shall permit an employee to use in any calendar year the employee’s accrued and available sick leave entitlement, in an amount not less than the sick leave that would be accrued during six months at the employee’s then current rate of entitlement, to attend to an illness of a child, parent, spouse, or domestic partner of the employee.” On the other hand, under Labor Code section 246.5 of the Paid Sick Leave law, employers must provide sick days for certain specified purposes, including “the diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.” There is no provision in the Paid Sick Leave law limiting use of paid sick leave for an employee’s ill family member to only half the annual entitlement (as required by the kin care law) or any other amount, and the Paid Sick Leave law does not reference the pre-existing kin care law. Accordingly, it appears that the full amount of paid sick leave may be used for any of the designated purposes in the Paid Sick Leave law, including caring for an employee’s family member, but it is not expressly stated. The Solution: This resolution addresses the problem by clarifying that the full amount of an employee’s accrued and available sick days may be used for any of the specified purposes, including caring for an ill family member. The new language also maintains the requirement set forth in Labor Code 246(c) that an employee is entitled to use accrued paid sick days beginning on the 90th day of employment. This bill is related to the 2015 BASF Resolutions on Kin Care and Paid Sick Leave Accrual.

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IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Cathleen S. Yonahara, Freeland Cooper & Foreman LLP, 150 Spear St., Ste. 1800, San Francisco, California 94105, telephone (415) 541-0200, facsimile (415) 495-4332, e-mail yonahara@freelandlaw.com RESPONSIBLE FLOOR DELEGATE: Cathleen S. Yonahara

COUNTERARGUMENTS TO RESOLUTION 12-02-2015 ORANGE COUNTY BAR ASSOCIATION Arguably, the Healthy Workplaces, Healthy Families Act of 2014 (“the Act”) has generated confusion in its application. However, this resolution does nothing to confront or alleviate such confusion, nor does it resolve the proponent’s purported ambiguity. Styled as an attempt at clarification of an obscurely stated problem, the resolution offers far more than clarification; it offers a way around the Act’s mandatory requirement that an employer provide the requisite sick days. Striking the words, “provide paid sick days” completely changes the law making what is currently a mandatory provision into a voluntary obligation. The Act clearly states that, “an employee shall be entitled to use accrued paid sick days beginning on the 90th day of employment, after which day the employee may use paid sick days as they are accrued.” Labor Code section 246(c) Labor Code Section 246.5 then sets forth the purposes for which the sick days are being provided. What is unclear is how removing mandatory language from the statute and inserting the language from one clearly stated section into another clarifies interaction with the existing provisions of Labor Code section 233. The proponent makes no showing of how this specific change addresses the problem outlined. In the end, amending the statute as proposed serves only to dismantle a strongly worded statute and take away hard won protections.

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RESOLUTION 12-03-2015

DIGEST Employment Law: Elimination of After-Acquired Evidence Defense in FEHA Cases Amends Government Code section 12940 to prohibit the use of the After-Acquired Evidence Defense by employers in defense of Fair Employment and Housing Act claims for employment discrimination. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Government Code section 12940 to prohibit the use of the After-Acquired Evidence Defense by employers in defense of Fair Employment and Housing Act claims for employment discrimination. This resolution should be disapproved because employers have legitimate reasons for asserting the defense when employees engage in serious wrongdoing. As an equitable defense to Fair Employment and Housing Act (“FEHA”) discrimination lawsuits, employers assert the After-Acquired Evidence Defense if they discover an employee’s misconduct after they carry out the adverse employment action, such as a termination, to justify that action. For an employer to successfully assert this defense it must prove “(1) the employee engaged in misconduct; (2) the employee’s misconduct was sufficiently severe that the employer would have discharged the employee because of that misconduct alone had the employer known of it; and (3) that the employer would have discharged the employee for his or her misconduct as a matter of settled company policy.” (CACI No. 2506; McKennon v. Nashville Banner Publishing Co. (1995) 513 U.S. 352, 362-63.) Although employers may attempt to assert this defense in situations where the employee committed minor misconduct the employer would not have discovered absent the FEHA litigation, courts and juries do not allow employers to use or prevail on this defense in situations where the misconduct is minor. (See, e.g., Thompson v. Tracor Flight Systems (2001) 86 Cal.App.4th 1156, 1174; Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 846.) In addition, as the California Supreme Court recently held in Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, the After-Acquired Evidence doctrine is not a complete defense to a FEHA action. Instead, it limits the damages an employee may recover to damages the employee suffered from the date of the employer’s wrongful conduct, to the date the employer discovers the employee’s wrongdoing or misconduct. The doctrine also eliminates the claim for future damages or reinstatement. (Id. at 430-431.) The defense is necessary, however, because the employee’s wrongdoing is “relevant not to punish the employee, . . . but to take due account of the lawful prerogatives of the employer in the usual course of its business and the corresponding equities it has arising from the employee’s

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wrongdoing.” (McKennon, supra, 513 U.S. at 361.) (Camp v. Jeffer, Mangels, Butler &Marmaro (1995) 53 Cal.App.4th 620, 637 [the employees’ concealment of their felony convictions “went to the heart of their employment relationship” with the law firm because the law firm’s contract to represent the Resolution Trust Corporation (“RTC”) required the law firm to certify that its employees did not have felony convictions and the employees’ misrepresentations put the firm not only in “jeopardy of losing its contract with the RTC but also of being accused of making false statements itself.”].) TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend California Government Code section 12940 to read as follows: §12940 It is an unlawful employment practice, unless based upon a bona fide occupational 1 qualification, or, except where based upon applicable security regulations established by the 2 United States or the State of California: 3 (a) For an employer, because of the race, religious creed, color, national origin, ancestry, 4 physical disability, mental disability, medical condition, genetic information, marital status, sex, 5 gender, gender identity, gender expression, age, sexual orientation, or military and veteran status 6 of any person, to refuse to hire or employ the person or to refuse to select the person for a 7 training program leading to employment, or to bar or to discharge the person from employment 8 or from a training program leading to employment, or to discriminate against the person in 9 compensation or in terms, conditions, or privileges of employment. 10 (1) This part does not prohibit an employer from refusing to hire or discharging an 11 employee with a physical or mental disability, or subject an employer to any legal liability 12 resulting from the refusal to employ or the discharge of an employee with a physical or mental 13 disability, where the employee, because of his or her physical or mental disability, is unable to 14 perform his or her essential duties even with reasonable accommodations, or cannot perform 15 those duties in a manner that would not endanger his or her health or safety or the health or 16 safety of others even with reasonable accommodations. 17 (2) This part does not prohibit an employer from refusing to hire or discharging an 18 employee who, because of the employee's medical condition, is unable to perform his or her 19 essential duties even with reasonable accommodations, or cannot perform those duties in a 20 manner that would not endanger the employee's health or safety or the health or safety of others 21 even with reasonable accommodations. Nothing in this part shall subject an employer to any 22 legal liability resulting from the refusal to employ or the discharge of an employee who, because 23 of the employee's medical condition, is unable to perform his or her essential duties, or cannot 24 perform those duties in a manner that would not endanger the employee's health or safety or the 25 health or safety of others even with reasonable accommodations. 26 (3) Nothing in this part relating to discrimination on account of marital status shall do 27 either of the following: 28 (A) Affect the right of an employer to reasonably regulate, for reasons of supervision, 29 safety, security, or morale, the working of spouses in the same department, division, or facility, 30 consistent with the rules and regulations adopted by the commission. 31

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(B) Prohibit bona fide health plans from providing additional or greater benefits to 32 employees with dependents than to those employees without or with fewer dependents. 33 (4) Nothing in this part relating to discrimination on account of sex shall affect the right 34 of an employer to use veteran status as a factor in employee selection or to give special 35 consideration to Vietnam-era veterans. 36 (5) (A) This part does not prohibit an employer from refusing to employ an individual 37 because of his or her age if the law compels or provides for that refusal. Promotions within the 38 existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of 39 seniority and prior service with the employer, or hiring under an established recruiting program 40 from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute 41 unlawful employment practices. 42 (B) The provisions of this part relating to discrimination on the basis of age do not 43 prohibit an employer from providing health benefits or health care reimbursement plans to 44 retired persons that are altered, reduced, or eliminated when the person becomes eligible for 45 Medicare health benefits. This subparagraph applies to all retiree health benefit plans and 46 contractual provisions or practices concerning retiree health benefits and health care 47 reimbursement plans in effect on or after January 1, 2011. 48 (b) For a labor organization, because of the race, religious creed, color, national origin, 49 ancestry, physical disability, mental disability, medical condition, genetic information, marital 50 status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and 51 veteran status of any person, to exclude, expel, or restrict from its membership the person, or to 52 provide only second-class or segregated membership or to discriminate against any person 53 because of the race, religious creed, color, national origin, ancestry, physical disability, mental 54 disability, medical condition, genetic information, marital status, sex, gender, gender identity, 55 gender expression, age, sexual orientation, or military and veteran status of the person in the 56 election of officers of the labor organization or in the selection of the labor organization's staff or 57 to discriminate in any way against any of its members or against any employer or against any 58 person employed by an employer. 59 (c) For any person to discriminate against any person in the selection, termination, 60 training, or other terms or treatment of that person in any apprenticeship training program, any 61 other training program leading to employment, an unpaid internship, or another limited duration 62 program to provide unpaid work experience for that person because of the race, religious creed, 63 color, national origin, ancestry, physical disability, mental disability, medical condition, genetic 64 information, marital status, sex, gender, gender identity, gender expression, age, sexual 65 orientation, or military and veteran status of the person discriminated against. 66 (d) For any employer or employment agency to print or circulate or cause to be printed or 67 circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, 68 either verbal or through use of an application form, that expresses, directly or indirectly, any 69 limitation, specification, or discrimination as to race, religious creed, color, national origin, 70 ancestry, physical disability, mental disability, medical condition, genetic information, marital 71 status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and 72 veteran status, or any intent to make any such limitation, specification, or discrimination. This 73 part does not prohibit an employer or employment agency from inquiring into the age of an 74 applicant, or from specifying age limitations, where the law compels or provides for that action. 75 (e) (1) Except as provided in paragraph (2) or (3), for any employer or employment 76 agency to require any medical or psychological examination of an applicant, to make any 77

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medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a 78 mental disability or physical disability or medical condition, or to make any inquiry regarding 79 the nature or severity of a physical disability, mental disability, or medical condition. 80 (2) Notwithstanding paragraph (1), an employer or employment agency may inquire into 81 the ability of an applicant to perform job-related functions and may respond to an applicant's 82 request for reasonable accommodation. 83 (3) Notwithstanding paragraph (1), an employer or employment agency may require a 84 medical or psychological examination or make a medical or psychological inquiry of a job 85 applicant after an employment offer has been made but prior to the commencement of 86 employment duties, provided that the examination or inquiry is job related and consistent with 87 business necessity and that all entering employees in the same job classification are subject to the 88 same examination or inquiry. 89 (f) (1) Except as provided in paragraph (2), for any employer or employment agency to 90 require any medical or psychological examination of an employee, to make any medical or 91 psychological inquiry of an employee, to make any inquiry whether an employee has a mental 92 disability, physical disability, or medical condition, or to make any inquiry regarding the nature 93 or severity of a physical disability, mental disability, or medical condition. 94 (2) Notwithstanding paragraph (1), an employer or employment agency may require any 95 examinations or inquiries that it can show to be job related and consistent with business 96 necessity. An employer or employment agency may conduct voluntary medical examinations, 97 including voluntary medical histories, which are part of an employee health program available to 98 employees at that worksite. 99 (g) For any employer, labor organization, or employment agency to harass, discharge, 100 expel, or otherwise discriminate against any person because the person has made a report 101 pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital 102 employees who report suspected patient abuse by health facilities or community care facilities. 103 (h) For any employer, labor organization, employment agency, or person to discharge, 104 expel, or otherwise discriminate against any person because the person has opposed any practices 105 forbidden under this part or because the person has filed a complaint, testified, or assisted in any 106 proceeding under this part. 107 (i) For any person to aid, abet, incite, compel, or coerce the doing of any of the acts 108 forbidden under this part, or to attempt to do so. 109 (j) (1) For an employer, labor organization, employment agency, apprenticeship training 110 program or any training program leading to employment, or any other person, because of race, 111 religious creed, color, national origin, ancestry, physical disability, mental disability, medical 112 condition, genetic information, marital status, sex, gender, gender identity, gender expression, 113 age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an 114 unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of 115 an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant 116 to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or 117 its agents or supervisors, knows or should have known of this conduct and fails to take 118 immediate and appropriate corrective action. An employer may also be responsible for the acts 119 of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or 120 volunteers, or persons providing services pursuant to a contract in the workplace, where the 121 employer, or its agents or supervisors, knows or should have known of the conduct and fails to 122 take immediate and appropriate corrective action. In reviewing cases involving the acts of 123

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nonemployees, the extent of the employer's control and any other legal responsibility that the 124 employer may have with respect to the conduct of those nonemployees shall be considered. An 125 entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job 126 benefits shall not be necessary in order to establish harassment. 127 (2) The provisions of this subdivision are declaratory of existing law, except for the new 128 duties imposed on employers with regard to harassment. 129 (3) An employee of an entity subject to this subdivision is personally liable for any 130 harassment prohibited by this section that is perpetrated by the employee, regardless of whether 131 the employer or covered entity knows or should have known of the conduct and fails to take 132 immediate and appropriate corrective action. 133 (4) (A) For purposes of this subdivision only, "employer" means any person regularly 134 employing one or more persons or regularly receiving the services of one or more persons 135 providing services pursuant to a contract, or any person acting as an agent of an employer, 136 directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The 137 definition of "employer" in subdivision (d) of Section 12926 applies to all provisions of this 138 section other than this subdivision. 139 (B) Notwithstanding subparagraph (A), for purposes of this subdivision, "employer" does 140 not include a religious association or corporation not organized for private profit, except as 141 provided in Section 12926.2. 142 (C) For purposes of this subdivision, "harassment" because of sex includes sexual 143 harassment, gender harassment, and harassment based on pregnancy, childbirth, or related 144 medical conditions. Sexually harassing conduct need not be motivated by sexual desire. 145 (5) For purposes of this subdivision, "a person providing services pursuant to a contract" 146 means a person who meets all of the following criteria: 147 (A) The person has the right to control the performance of the contract for services and 148 discretion as to the manner of performance. 149 (B) The person is customarily engaged in an independently established business. 150 (C) The person has control over the time and place the work is performed, supplies the 151 tools and instruments used in the work, and performs work that requires a particular skill not 152 ordinarily used in the course of the employer's work. 153 (k) For an employer, labor organization, employment agency, apprenticeship training 154 program, or any training program leading to employment, to fail to take all reasonable steps 155 necessary to prevent discrimination and harassment from occurring. 156 (l) (1) For an employer or other entity covered by this part to refuse to hire or employ a 157 person or to refuse to select a person for a training program leading to employment or to bar or to 158 discharge a person from employment or from a training program leading to employment, or to 159 discriminate against a person in compensation or in terms, conditions, or privileges of 160 employment because of a conflict between the person's religious belief or observance and any 161 employment requirement, unless the employer or other entity covered by this part demonstrates 162 that it has explored any available reasonable alternative means of accommodating the religious 163 belief or observance, including the possibilities of excusing the person from those duties that 164 conflict with his or her religious belief or observance or permitting those duties to be performed 165 at another time or by another person, but is unable to reasonably accommodate the religious 166 belief or observance without undue hardship, as defined in subdivision (u) of Section 12926, on 167 the conduct of the business of the employer or other entity covered by this part. Religious belief 168 or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or 169

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other religious holy day or days, reasonable time necessary for travel prior and subsequent to a 170 religious observance, and religious dress practice and religious grooming practice as described in 171 subdivision (q) of Section 12926. This subdivision shall also apply to an apprenticeship training 172 program, an unpaid internship, and any other program to provide unpaid experience for a person 173 in the workplace or industry. 174 (2) An accommodation of an individual's religious dress practice or religious grooming 175 practice is not reasonable if the accommodation requires segregation of the individual from other 176 employees or the public. 177 (3) An accommodation is not required under this subdivision if it would result in a 178 violation of this part or any other law prohibiting discrimination or protecting civil rights, 179 including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code. 180 (m) For an employer or other entity covered by this part to fail to make reasonable 181 accommodation for the known physical or mental disability of an applicant or employee. 182 Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to 183 require an accommodation that is demonstrated by the employer or other covered entity to 184 produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation. 185 (n) For an employer or other entity covered by this part to fail to engage in a timely, good 186 faith, interactive process with the employee or applicant to determine effective reasonable 187 accommodations, if any, in response to a request for reasonable accommodation by an employee 188 or applicant with a known physical or mental disability or known medical condition. 189 (o) For an employer or other entity covered by this part, to subject, directly or indirectly, 190 any employee, applicant, or other person to a test for the presence of a genetic characteristic. 191 (p) Nothing in this section shall be interpreted as preventing the ability of employers to 192 identify members of the military or veterans for purposes of awarding a veteran's preference as 193 permitted by law. 194 (q): The judicially created After Acquired Evidence Defense does not apply to bar or 195 limit damages to any FEHA claims arising under this Section §12940. 196

(Proposed new language underlined; language to be deleted stricken) PROPONENT: Bar Association of Northern San Diego County STATEMENT OF REASONS The Problem: The After Acquired Evidence Defense is used by employers in FEHA claims to either bar or limit damages for discriminatory conduct in the employment context by finding some act by the employee in the past that, if known by the employer, could have justified the employee’s termination. Most times, these are minor issues that he employer would not have even discovered but for the litigation and access to the employee’s entire history, including employment history, in discovery. This should not limit an employer’s damages for illegal discriminatory conduct. The Solution: This Resolution would eliminate use of the after acquired evidence defense in employment related discrimination claims under FEHA actions only.

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IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Melissa L. Bustarde, Esq., Mayfield Bustarde, LLP, 462 Stevens Ave., Suite 303, Solana Beach, CA 92075, (858) 793-8090 RESPONSIBLE FLOOR DELEGATE: Melissa L. Bustarde, Esq.

COUNTERARGUMENTS TO RESOLUTION 12-03-2015 SACRAMENTO COUNTY BAR ASSOCIATION The after-acquired affirmative defense is an equitable defense related to the doctrine of unclean hands and is generally available as a defense to legal, equitable, and statutory claims. No justification has been provided as to why FEHA claims should be treated differently than other claims regarding the applicability of the affirmative defense. The proponent simply states that “Most times, these are minor issues that he [sic] employer would not have even discovered but for the litigation and access to the employee’s entire history, including employment history, in discovery.” First, even if true, such an argument could be stated for eliminating the affirmative defense as to all claims, not just FEHA claims. However, contrary to the proponent’s characterization, to succeed with this defense the employer has the burden of proving, by a preponderance of the evidence, that the wrongdoing was severe enough that the adverse action would have been taken on those grounds alone if the employer had known of it at the time of discharge. (McKennon v. Nashville Banner Pub. Co. (1995) 513 U.S. 352, 360-362.) This standard requires a showing of much more than a minor issue. Furthermore, as the U.S. Supreme Court and other federal courts have pointed out, it makes logical sense that remedies such as reinstatement and front pay are not appropriate and should be eliminated as options in an employment claim of any kind, including a FEHA claim, when the after-acquired evidence defense has been successfully proven, as “[i]t would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds.” (Id., at 361.) “Simple common sense tells us that it would be inequitable to award [the plaintiff] front pay in lieu of reinstatement where she had rendered herself actually unable to be reinstated.” (Sellers v. Mineta (8th Cir. 2004) 358 F.3d 1058, 1063-1064.)

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RESOLUTION 12-04-2015

DIGEST Labor Code: Final Paycheck Notification Amends Labor Code section 202 to create procedure for notifying self-terminating employees about retrieving final paycheck. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Labor Code section 202 to create procedure for notifying self-terminating employees about retrieving final paycheck. This resolution should be disapproved because it creates an unfair trap and burden for innocent employers whose employees quit without notice. Under current law, a self-terminating employee is entitled to his or her wages no more than 72 hours after quitting, regardless of whether or not that employee has given advanced notice of quitting. If the employer does not have those wages available, they are subject to stiff penalties under Labor Code section 203. This resolution would impose those penalties on employers who have complied with the law by having the wages ready and available within 72 hours, but have not also undertaken the effort to draft and send a letter (also within 72 hours) to the employee who quit without notice, informing him or her that the employer in fact complied with its legal obligations. The burden of preparing and sending a letter may seem minimal for large businesses with human resources and legal departments. However, that burden and the repercussions are much greater for small business owners who have limited time and resources for preparing final pay-checks and correspondence, while also trying to fill an unexpected vacancy in their staffing, and continuing their daily business operations. With this resolution, an innocent mistake in not mailing a letter out quickly enough could result in staggering penalties for small business owners. Moreover, this resolution would encourage employees to quit without notice so that they could collect a financial windfall from penalties if their employer did not send out the mandated letter fast enough. Such gamesmanship should not be encouraged. TEXT OF RESOLUTION RESOLVED, that the Conference of California Bar Association recommend that legislation be sponsored to amend Labor Code section 202 to read as follows: §202. (a) If an employee not having a written contract for a definite period quits his or her 1 

employment, his or her wages shall become due and payable not later than 72 hours thereafter, 2 

unless the employee has given 72 hours previous notice of his or her intention to quit, in which 3 

case the employee is entitled to his or her wages at the time of quitting. Notwithstanding any 4 

other provision of law, an employee who quits without providing a 72-hour notice shall be 5 

entitled to receive payment by mail if he or she so requests and designates a mailing address. The 6 

date of the mailing shall constitute the date of payment for purposes of the requirement to 7 

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provide payment within 72 hours of the notice of quitting. Notwithstanding any other provision 8 

of law, if an employee quits without providing a 72-hour notice, does not request payment by 9 

mail and does not retrieve his or her payment at the employer’s physical office within 72 hours, 10 

the employer must nonetheless prepare the payment within 72 hours and must mail a letter 11 

within 72 hours to the last known address for the employee, if an address was ever provided, 12 

notifying the employee that the payment is ready to be retrieved and specifying the address 13 

where payment may be retrieved. 14 

(b) Notwithstanding any other provision of law, the state employer shall be deemed to 15 

have made an immediate payment of wages under this section for any unused or accumulated 16 

vacation, annual leave, holiday leave, sick leave to which the employee is otherwise entitled due 17 

to a disability retirement, or time off to which the employee is entitled by reason of previous 18 

overtime work where compensating time off was given by the appointing power, provided at 19 

least five workdays prior to his or her final day of employment, the employee submits a written 20 

election to his or her appointing power authorizing the state employer to tender payment for any 21 

or all leave to be contributed on a pretax basis to the employee's account in a state-sponsored 22 

supplemental retirement plan as described under Sections 401(k), 403(b), or 457 of the Internal 23 

Revenue Code provided the plan allows those contributions. The contribution shall be tendered 24 

for payment to the employee's 401(k), 403(b), or 457 plan account no later than 45 days after the 25 

employee's last day of employment. Nothing in this section is intended to authorize contributions 26 

in excess of the annual deferral limits imposed under federal and state law or the provisions of 27 

the supplemental retirement plan itself. 28 

(c) Notwithstanding any other provision of law, when a stated employee quits, retires, or 29 

disability retires from his or her employment with the state, the employee may, at least five 30 

workdays prior to his or her final day of employment, submit a written election to his or her 31 

appointing power authorizing the state employer to defer into the next calendar year payment of 32 

any or all of the employee's unused or accumulated vacation, annual leave, holiday leave, sick 33 

leave to which the employee is otherwise entitled due to a disability, retirement, or time off to 34 

which the employee is entitled by reason of previous overtime work where compensating time 35 

off was given by the appointing power. To qualify for the deferral of payment under this section, 36 

only that portion of leave that extends past the November pay period for state employees shall be 37 

deferred into the next calendar year under this section may do any of the following: (1) 38 

Contribute the entire payment to his or her 401(k), 403(b), or 457 plan account. (2) Contribute 39 

any portion of the deferred payment to his or her 401(k), 403(b), or 457 plan account and receive 40 

cash payment for the remaining noncontributed unused leave. (3) Receive a lump sum payment 41 

for all of the deferred unused leave as described above. Payments shall be tendered under this 42 

section no later than February 1 in the year following the employee's last day of employment. 43 

Nothing in this section is intended to authorize contributions in excess of the annual deferral 44 

limits imposed under federal and state law or the provisions of the supplemental retirement plan 45 

itself. 46 

(Proposed new language underlined; language to be deleted stricken.)

PROPONENT: San Mateo County Bar Association STATEMENT OF REASONS

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The Problem: Although California provides strong protections for many workers’ rights, some judges have interpreted Labor Code section 202 such that employees who quit may never receive their final paycheck and may never know why. Employees who are involuntarily terminated must be paid their final wages on their final day. (See Lab. Code § 201(a).) Employees who voluntarily resign after providing at least 72 hours’ notice in advance must also be paid immediately. (See Lab. Code § 202(a).) However, some judges have interpreted sections 202 and 203 to mean that there is no deadline to pay final wages to voluntarily resigning employees who give less than 72 hours’ notice and who do not request to receive a final payment by mail. Although the author has not located California opinions requiring this election, several federal district courts have decided that Labor Code sections 208 (“every employee who quits shall be paid at the office or agency of the employer”) and 212 (no person shall issue payment for wages unless, inter alia, it is payable “at some established place of business in the state”), read together with section 202, impose upon employees an obligation to demand tender of payment by returning to their place of employment within 72 hours or to designate a mailing address for delivery of their final paycheck. See, e.g., In re Wal-Mart Stores, Inc. Wage & Hour Litig., C 06-2069 SBA, 2008 WL 413749, at *3, *8 (N.D. Cal. Feb. 13, 2008); Moreno v. Autozone, Inc., No. CV 05-4432 CRB, 2009 WL 3320489, at *3 (N.D. Cal. Oct. 9, 2009) aff'd, 410 F. App’x 24 (9th Cir. 2010); B 11-3587-YGR, Dkt. No. 185 (N.D.Cal. Nov. 12, 2014); Pena, 2013 WL 5703505, at *4. Few attorneys, let alone lay employees, are aware of this supposed requirement to “elect” a method to receive payment. Indeed, workers’ rights posters, mandated by the State, inform employees of dozens of legal rights but do not include this supposed requirement to elect how to receive final payment. The Solution: Currently, section 202 contains an exception to 208 and 212 for employees who quit and elect payment by mail but not for employees who quit without electing payment by mail. Ideally, all employers would maintain current addresses for employees and simply mail the payment after 72 hours if the employee has not retrieved the payment. Although this will help many employees, it may also result in an equal or greater number of problems due to payments mailed to outdated addresses. The author has worked with clients facing this exact problem, some of whom were forced to attempt to prove that fraud occurred before being re-issued a final paycheck. This proposal merely adds a requirement that employers notify a quitting employee that a final payment is available and notify the employee of the address where final payment can be retrieved. This notification will likely help an incalculable number of employees to receive their final paycheck, reducing fear and confusion. The burden on employers is minimal, while the benefit to affected employees is significant.

(Proposed new language underlined; language to be deleted stricken)

IMPACT STATEMENT

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The proposed resolution clarifies the standard for a violation based on Labor Code section 202; the penalties for such a violation are located in section 203. As a result, this proposal may affect when section 203 penalties can be collected but does not directly modify section 203 or any other rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Stephen Noel Ilg, ILG Legal Office, 555 California Street, Suite 4925, San Francisco, CA 94104; (415)580-2574. RESPONSIBLE FLOOR DELEGATE: Stephen Noel Ilg

COUNTERARGUMENTS TO RESOLUTION 12-04-2015 BAR ASSOCIATION OF NORTHERN SAN DIEGO COUNTY Although we do not disagree with this resolution in concept, we think employers should be able to utilize more effective means of communicating with an employee, such as a phone call or email, before having to resort to mailing a letter. Also, the resolution is a little vague as to the timing of the mailing of the letter. It can be clarified that the letter must go out within 72 hours of the employee giving notice of quitting. We would approve of the resolution if it is amended to address these two items. ORANGE COUNTY BAR ASSOCIATION The proposed language attempts to remedy a situation where the employer does not have a current address for an employee that quits without providing 72 hours notice by putting the burden on the employer to send a letter to the last known address for the employee, if it was ever provided, stating where to pick up payment. However, the proposed language fails to address how long the employer needs to keep the final paycheck in its possession for retrieval. It should state how long the employer has to have the final paycheck available. Further, the proposed language should be amended to state that the letter to the employee should be sent by certified mail so that the employer had proof that such letter was sent and the burden then shifts to the employee to take the initiative to retrieve the final paycheck. SACRAMENTO COUNTY BAR ASSOCIATION On its face, the proposed resolution seems harmless enough. However, it is unnecessary under existing law and could potentially have extremely expensive consequences for an unwary employer. As the proponent has noted, Labor Code section 202 already provides that final wages are “due and payable not later than 72 hours after” an employee resigns, if the employee has not given at least 72 hours’ notice of resignation. This statute already places an affirmative duty on the employer to ensure that payment of final wages is available within this time period,

12-04-2015 Page 5 of 5  

and the employer is subject to significant penalties if it violates this requirement. Regarding the manner of payment, section 202 allows payment by mail only when the employee consents and designates a mailing address. Given that existing law already provides that payment must be prepared and made available within 72 hours and that the payment may not be mailed without the employee’s consent, all that the employee need do is return to their former place of employment to retrieve their final pay or contact the employer to make other arrangements, including mailing of the final paycheck. One would reasonably assume that any employee would be eager to receive payment and the burden placed on the employee to pick up their check or to communicate with the employer about any other means of delivery is extremely minimal. After all, what employee sits around wondering where their final paycheck is but does nothing to retrieve it? Imposing a new, unnecessary requirement on the employer to track down the employee to let him/her know that their check is available (in other words, to let the employee know that the employer has, in fact, complied with the law) is nothing more than paternalistic while potentially creating an expensive trap for the employer. Per the proponent, Labor Code section 203 penalties would apply if the employer did not send the letter advising the employee that their check was ready and waiting for them, which could quickly amount to thousands of dollars in penalties for the employer even though it had otherwise complied with the law in terms of making the final pay available when statutorily required. For example, if the employer prepared the final paycheck within the statutorily-required time period but failed to send the proposed letter, the employer would face a penalty of $2,400 for a minimum wage employee. For an employee making $30 per hour, the employer would face a penalty of $7,200, simply for failing to send a letter advising the employee that the employer had complied with the law! (The section 203 penalty increases by $240 for each additional $1 in wages the employee earned.) With such hefty financial incentives available, this resolution would encourage the worst kind of gamesmanship by a resigning employee to: (1) resign on less than 72 hours’ notice; (2) make no effort to get their final paycheck; (3) wait to see if the employer contacts them to advise them to pick up their paycheck and, if not, sit quietly for 30 days before contacting the employer to get their check (which has been available and waiting for them to pick up the entire time); and then (4) collect a financial windfall of thousands of dollars in penalties from the employer. Finally, the proposed resolution also is confusing and inconsistent with the existing statutory language. The statute allows an employer the full 72-hour period to prepare the check and make it available to the employee. However, under the proposed revision, the employer would be required to send the letter to the employee advising that their check was ready before the 72-hour period had expired, thus negating the 72-hour allowance that the employer is provided under the statute. Further, the proposed revision requires the letter to go out within 72 hours of the employee’s quitting if the employee has not requested mailing of the check or has not otherwise retrieved the check within those same 72 hours, again negating the 72-hour statutory period for the employer to prepare the check and the employee to retrieve it. Such ambiguous language only makes the potential for the financial windfall discussed above much more likely to occur.

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RESOLUTION 12-05-2015 DIGEST Workers’ Compensation: Priority Conferences in Workers’ Compensation Disputes Amends California Labor Code section 5502 to allow continuances of a priority conference, to eliminate periodic status conferences, and to allow the matter to be taken off-calendar. RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends California Labor Code section 5502 to allow continuances of a priority conference, to eliminate periodic status conferences, and to allow the matter to be taken off-calendar. This resolution should be disapproved because it does not clearly identify a problem that needs to be fixed. Under the current statutes, a workers’ compensation dispute can be set for a priority conference by the administrative law judge if the criteria for an expedited hearing and decision are met. These criteria are statutorily set in California Labor Code section 5502, subdivision (b). If the dispute cannot be resolved at the priority conference, the matter is then set for trial as expeditiously as possible. The only delay in the expeditious trial setting is a good cause showing for the need to complete discovery. If the parties make such a good cause showing, the matter is set for a status conference to determine readiness for trial. There does not appear to be a need to change the current structure. It is not clear why a further priority hearing should be permitted simply because the dispute was not be resolved at the initial (or even at a continued) priority hearing. At minimum, there should be a good cause showing for a continued priority hearing, and a limit on the number of priority hearings, because the purpose of the priority hearing is to resolve urgent matters. There may be circumstances under which a further priority hearing is needed, but there should be some minimum showing required to obtain a further priority hearing. Under the current code, a priority hearing is obtained by meeting certain minimum criteria (per Lab. Code, § 5502, subd. (b)). Similarly, a request for a continued priority hearing should also have to meet some minimum criteria. Finally, taking matters off calendar and eliminating periodic status conferences defeats the purpose of court oversight and ensuring that matters are moved along towards resolution at a reasonable pace. If the concern is a seemingly endless string of status conferences, perhaps the solution would be to limit the number of status conferences rather than eliminate them altogether.

10-05-2015 Page 2 of 4

TEXT OF RESOLUTION RESOLVED That the Conference of California Bar Association recommends that legislation be sponsored to amend California Labor Code section 5502 to read as follows: §5502 Time for hearing; priority calendar; mandatory settlement conference. 1 (a) Except as provided in subdivisions (b) and (d), the hearing shall be held not less than 2 10 days, and not more than 60 days, after the date a declaration of readiness to proceed, on a 3 form prescribed by the appeals board, is filed. If a claim form has been filed for an injury 4 occurring on or after January 1, 1990, and before January 1, 1994, an application for adjudication 5 shall accompany the declaration of readiness to proceed. 6 (b) The administrative director shall establish a priority calendar for issues requiring an 7 expedited hearing and decision. A hearing shall be held and a determination as to the rights of 8 the parties shall be made and filed within 30 days after the declaration of readiness to proceed is 9 filed if the issues in dispute are any of the following, provided that if an expedited hearing is 10 requested, no other issue may be heard until the medical provider network dispute is resolved: 11 (1) The employee’s entitlement to medical treatment pursuant to Section 4600, except for 12 treatment issues determined pursuant to Sections 4610 and 4610.5. 13 (2) Whether the injured employee is required to obtain treatment within a medical 14 provider network. 15 (3) A medical treatment appointment or medical-legal examination. 16 (4) The employee’s entitlement to, or the amount of, temporary disability indemnity 17 payments. 18 (5) The employee’s entitlement to compensation from one or more responsible employers 19 when two or more employers dispute liability as among themselves. 20 (6) Any other issues requiring an expedited hearing and determination as prescribed in 21 rules and regulations of the administrative director. 22 (c) The administrative director shall establish a priority conference calendar for cases in 23 which the employee is represented by an attorney or is or was employed by an illegally 24 uninsured employer and the issues in dispute are employment or injury arising out of 25 employment or in the course of employment. The conference shall be conducted by a workers’ 26 compensation administrative law judge within 30 days after the declaration of readiness to 27 proceed. If the dispute cannot be resolved at the priority conference, the matter may be continued 28 to another priority conference, or to trial. A trial shall be set as expeditiously as possible. unless 29 good cause is shown why discovery is not complete, in which case status conferences shall be 30 held at regular intervals. The case shall be set for trial when discovery is complete, or when the 31 workers’ compensation administrative law judge determines that the parties have had sufficient 32 time in which to complete reasonable discovery. If the workers’ compensation administrative 33 law judge determines that discovery cannot be completed within a reasonable time, the matter 34 may be taken off calendar. A determination as to the rights of the parties shall be made and filed 35 within 30 days after the trial. 36 (d) (1) In all cases, a mandatory settlement conference, except a lien conference or a 37 mandatory settlement lien conference, shall be conducted not less than 10 days, and not more 38 than 30 days, after the filing of a declaration of readiness to proceed. If the dispute is not 39

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resolved, the regular hearing, except a lien trial, shall be held within 75 days after the declaration 40 or readiness to proceed is filed. 41 (2) The settlement conference shall be conducted by a workers’ compensation 42 administrative law judge or by a referee who is eligible to be a workers’ compensation 43 administrative law judge or eligible to be an arbitrator under Section 5270.5. At the mandatory 44 settlement conference the referee or workers’ compensation administrative law judge shall have 45 the authority to resolve the dispute, including the authority to approve a compromise and release 46 or issue a stipulated finding and award, and if the dispute cannot be resolved, to frame the issues 47 and stipulations for trial. The appeals board shall adopt any regulations needed to implement this 48 subdivision. The presiding workers’ compensation administrative law judge shall supervise 49 settlement conference referees in the performance of their judicial functions under this 50 subdivision. 51 (3) If the claim is not resolved at the mandatory settlement conference, the parties shall 52 file a pretrial conference statement noting the specific issues in dispute, each party’s proposed 53 permanent disability rating, and listing the exhibits, and disclosing witnesses. Discovery shall 54 close on the date of the mandatory settlement conference. Evidence not disclosed or obtained 55 thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it 56 was not available or could not have been discovered by the exercise of due diligence prior to the 57 settlement conference. 58 (e) In cases involving the Director of Industrial Relations in his or her capacity as 59 administrator of the Uninsured Employers Fund, this section shall not apply unless proof of 60 service, as specified in paragraph (1) of subdivision (d) of Section 3716, has been filed with the 61 appeals board and provided to the Director of Industrial Relations, valid jurisdiction has been 62 established over the employer, and the fund has been joined. 63 (f) Except as provided in subdivision (a) [1], this section shall apply irrespective of the 64 date of injury. 65

(Proposed new language underlined; language to be deleted stricken)

PROPONENT: Gerald C. Benezra, Mervyn R. Israel, Stuart I. Barth, Sheldon L. Goldflam, Louis H.Berger, Nestor A. Michelena, John L. Michelena, Steven Dewberry, Lessing C. Solov, Jamey Teitell STATEMENT OF REASONS The Problem: Workers’ Compensation benefits cannot be provided until there is resolution of the issues of employment and the causal relationship of the injury to the worker’s employment. The purpose of a priority conference is to provide an expeditious hearing of these two issues. Limiting the continuance of a priority conference to a status conference is not expeditious since the matter cannot be set for trial directly from a status conference. The multiple status conference settings under existing law over-crowds the court calendar and delays the calendaring of other pending cases. The statute as presently written produces unnecessary delays in getting the matter to trial. The Solution: This amendment to Labor Code Section 5502(c) allows for the continuance of a priority conference to another priority conference from which the matter can directly move to a

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trial setting, or be taken off-calendar without the necessity of repeated unproductive status conferences. IMPACT STATEMENT This proposed amendment does not conflict with Labor Code Section 5502.5 requiring good cause for the continuance of a priority conference. It does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Gerald Benezra, 1545 Wilshire Blvd., Suite 606, Los Angeles, CA 90017, 213/484-2247, FAX 213/413-1166, Israel.benezra@att.net RESPONSIBLE FLOOR DELEGATE: Gerald Benezra

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RESOLUTION 12-06-2015

WITHDRAWN BY PROPONENT

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RESOLUTION 12-07-2015 TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend Labor Code sections 4610.5 and 4610.6 to read as follows: §4610.5 (a) This section applies to the following disputes: 1 (1) Any dispute over a utilization review decision regarding treatment for an injury 2 occurring on or after January 1, 2013. 3 (2) Any dispute over a utilization review decision if the decision is communicated to the 4 requesting physician on or after July 1, 2013, regardless of the date of injury. 5 (b) A dispute described in subdivision (a) shall be resolved only in accordance with this 6 section. 7 (c) For purposes of this section and Section 4610.6, the following definitions apply: 8 (1) "Disputed medical treatment" means medical treatment that has been modified, 9 delayed, or denied by utilization review decision. 10 (2) "Medically necessary" and "medical necessity" mean medical treatment that is 11 reasonably required to cure or relieve the injured employee of the effects of his or her injury and 12 based on the following standards, which shall be applied in the order listed, allowing reliance on 13 a lower ranked standard only if every higher ranked standard is inapplicable to the employee's 14 medical condition: 15 (A) The guidelines adopted by the administrative director pursuant to Section 5307.27. 16 (B) Peer-reviewed scientific and medical evidence regarding the effectiveness of the 17 disputed service. 18 (C) Nationally recognized professional standards. 19 (D) Expert opinion. 20 (E) Generally accepted standards of medical practice. 21 (F) Treatments that are likely to provide a benefit to a patient for conditions for which 22 other treatments are not clinically efficacious. 23 (3) "Utilization review decision" means a decision pursuant to Section 4610 to modify, 24 delay, or deny, based in whole or in part on medical necessity to cure or relieve, a treatment 25 recommendation or recommendations by a physician prior to, retrospectively, or concurrent with, 26 the provision of medical treatment services pursuant to Section 4600 or subdivision (c) of 27 Section 5402 that is in procedural compliance with Title 8 of the California Code of Regulations 28 sections 9792.9, 9792.9.1 and 9792.6. 29 30 §4610.6 31 (a) Upon receipt of a case pursuant to Section 4610.5 that is in procedural compliance 32 with Title 8 of the California Code of Regulations sections 9792.9, 9792.9.1 and 9792.6, an 33 independent medical review organization shall conduct the review in accordance with this article 34 and any regulations or orders of the administrative director. The organization’s review shall be 35 limited to an examination of the medical necessity of the disputed medical treatment. 36

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(b) Upon receipt of information and documents related to a case, the medical reviewer or 37 reviewers selected to conduct the review by the independent medical review organization shall 38 promptly review all pertinent medical records of the employee, provider reports, and any other 39 information submitted to the organization or requested from any of the parties to the dispute by 40 the reviewers. If the reviewers request information from any of the parties, a copy of the request 41 and the response shall be provided to all of the parties. The reviewer or reviewers shall also 42 review relevant information related to the criteria set forth in subdivision (c). 43 (c) Following its review, the reviewer or reviewers shall determine whether the disputed 44 health care service was medically necessary based on the specific medical needs of the employee 45 and the standards of medical necessity as defined in subdivision (c) of Section 4610.5. 46 (d) The organization shall complete its review and make its determination in writing, and 47 in layperson’s terms to the maximum extent practicable, within 30 days of the receipt of the 48 request for review and supporting documentation, or within less time as prescribed by the 49 administrative director. If the disputed medical treatment has not been provided and the 50 employee’s provider or the administrative director certifies in writing that an imminent and 51 serious threat to the health of the employee may exist, including, but not limited to, serious pain, 52 the potential loss of life, limb, or major bodily function, or the immediate and serious 53 deterioration of the health of the employee, the analyses and determinations of the reviewers 54 shall be expedited and rendered within three days of the receipt of the information. Subject to the 55 approval of the administrative director, the deadlines for analyses and determinations involving 56 both regular and expedited reviews may be extended for up to three days in extraordinary 57 circumstances or for good cause. 58 (e) The medical professionals’ analyses and determinations shall state whether the 59 disputed health care service is medically necessary. Each analysis shall cite the employee’s 60 medical condition, the relevant documents in the record, and the relevant findings associated 61 with the provisions of subdivision (c) to support the determination. If more than one medical 62 professional reviews the case, the recommendation of the majority shall prevail. If the medical 63 professionals reviewing the case are evenly split as to whether the disputed health care service 64 should be provided, the decision shall be in favor of providing the service. 65 (f) The independent medical review organization shall provide the administrative 66 director, the employer, the employee, and the employee’s provider with the analyses and 67 determinations of the medical professionals reviewing the case, and a description of the 68 qualifications of the medical professionals. The independent medical review organization shall 69 keep the names of the reviewers confidential in all communications with entities or individuals 70 outside the independent medical review organization. If more than one medical professional 71 reviewed the case and the result was differing determinations, the independent medical review 72 organization shall provide each of the separate reviewer’s analyses and determinations. 73 (g) The determination of the independent medical review organization that is in 74 procedural compliance with Title 8 of the California Code of Regulations sections 9792.9, 75 9792.9.1 and 9792.6 shall be deemed to be the determination of the administrative director and 76 shall be binding on all parties. 77 (h) A determination of the administrative director pursuant to this section may be 78 reviewed only by a verified appeal from the medical review determination of the administrative 79 director, filed with the appeals board for hearing pursuant to Chapter 3 (commencing with 80 Section 5500) of Part 4 and served on all interested parties within 30 days of the date of mailing 81 of the determination to the aggrieved employee or the aggrieved employer. The determination of 82

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the administrative director shall be presumed to be correct and shall be set aside only upon proof 83 by clear and convincing evidence of one or more of the following grounds for appeal: 84 (1) The administrative director acted without or in excess of the administrative director’s 85 powers. 86 (2) The determination of the administrative director was procured by fraud. 87 (3) The independent medical reviewer was subject to a material conflict of interest that is 88 in violation of Section 139.5. 89 (4) The determination was the result of bias on the basis of race, national origin, ethnic 90 group identification, religion, age, sex, sexual orientation, color, or disability. 91 (5) The determination was the result of a plainly erroneous express or implied finding of 92 fact, provided that the mistake of fact is a matter of ordinary knowledge based on the information 93 submitted for review pursuant to Section 4610.5 and not a matter that is subject to expert 94 opinion. 95 (i) If the determination of the administrative director is reversed, the dispute shall be 96 remanded to the administrative director to submit the dispute to independent medical review by a 97 different independent review organization. In the event that a different independent medical 98 review organization is not available after remand, the administrative director shall submit the 99 dispute to the original medical review organization for review by a different reviewer in the 100 organization. In no event shall a workers’ compensation administrative law judge, the appeals 101 board, or any higher court make a determination of medical necessity contrary to the 102 determination of the independent medical review organization. 103 (j) Upon receiving the determination of the administrative director that a disputed health 104 care service is medically necessary, the employer shall promptly implement the decision as 105 provided by this section unless the employer has also disputed liability for any reason besides 106 medical necessity. In the case of reimbursement for services already rendered, the employer shall 107 reimburse the provider or employee, whichever applies, within 20 days, subject to resolution of 108 any remaining issue of the amount of payment pursuant to Sections 4603.2 to 4603.6, inclusive. 109 In the case of services not yet rendered, the employer shall authorize the services within five 110 working days of receipt of the written determination from the independent medical review 111 organization, or sooner if appropriate for the nature of the employee’s medical condition, and 112 shall inform the employee and provider of the authorization. 113 (k) Failure to pay for services already provided or to authorize services not yet rendered 114 within the time prescribed by subdivision (l) is a violation of this section and, in addition to any 115 other fines, penalties, and other remedies available to the administrative director, the employer 116 shall be subject to an administrative penalty in an amount determined pursuant to regulations to 117 be adopted by the administrative director, not to exceed five thousand dollars ($5,000) for each 118 day the decision is not implemented. The administrative penalties shall be paid to the Workers’ 119 Compensation Administration Revolving Fund. 120 (l) The costs of independent medical review and the administration of the independent 121 medical review system shall be borne by employers through a fee system established by the 122 administrative director. After considering any relevant information on program costs, the 123 administrative director shall establish a reasonable, per-case reimbursement schedule to pay the 124 costs of independent medical review organization reviews and the cost of administering the 125 independent medical review system, which may vary depending on the type of medical condition 126 under review and on other relevant factors. 127

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(m) The administrative director may publish the results of independent medical review 128 determinations after removing individually identifiable information. 129 (n) If any provision of this section, or the application thereof to any person or 130 circumstances, is held invalid, the remainder of the section, and the application of its provisions 131 to other persons or circumstances, shall not be affected thereby. 132

(Proposed new language underlined; language to be deleted stricken) PROPONENT: San Diego County Bar Association STATEMENT OF REASONS The Problem: The current wording of Labor Code sections 4610.5 and 4610.6 provide that any disputes over a utilization review decision modifying, delaying or denying in whole or in part a request for authorization by a treating physician must be made through the independent medical review system. The procedural requirements as to both the treating physician's request for authorizations, and the Defendants decisions to modify, delay or deny, the treating physicians requests for authorization of treatment are set forth in Title 8of the California Code of Regulations sections 9792.6, 9792.9 and 9792.9.1., which require among other things, that the utilization review decisions of modification, delay or denial, must be (a) timely issued and communicated to the treating physician within 5 working days, (b) must thereafter be timely served on the injured worker, and the injured worker's attorney, within prescribed time periods, and (c) issued by a physician competent to evaluate the specific clinical issues in dispute who has been provided all of the pertinent medical records. The Workers' Compensation Appeals Board issued a decision known as Duhon I which determined that where a Defendant's utilization review decision to modify, delay or deny is procedurally deficient, namely noncompliant with the above cited regulations, the procedural disputes are to be decided by the Workers' Compensation Appeals Board rather than through the independent medical review process set forth in Labor Code section 4610.6.Unfortunately, Duhon I was subjected to a Petition for Reconsideration which led to the Workers' Compensation Appeals Board issuing an en banc decision in Duhon II, limiting and modifying the Duhon I decision by holding that only issues of timeliness fall under the jurisdiction of the Workers' Compensation Appeals Board, whereas all other utilization review decision disputes fall under the independent medical review system. In short, the Duhon II decision reinstitutes the ability of the Defendants to issue, with impunity, decisions to modify delay or deny requests for authorization that are procedurally non compliant with Code of Regulations sections 9792.6, 9792.9 and 9792.9.1 as long as the noncompliant decision of denial was communicated by facsimile transmission or telephone to the treating physician who issued the request for authorization within the five working day time limit. As a result, Defendants are able to thwart the provisions of Labor Code section 4600 that requires them to provide all forms of medical treatment reasonably necessary to cure or relieve the injured worker's symptoms and disabilities caused their industrial injury. This is clearly a case of the legislature exalting the economic interests of employers and the insurance carriers over the medical treatment needs of injured workers via an independent medical review system that condones gross procedural inadequacies.

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The Solution: This resolution would amend Labor Code sections 4610.5 and 4610.6 to require that all utilization review decisions be compliant with the provisions of Code of Regulations sections 9792.6, 9792.9 and 9792.9.1 so that the procedural compliance of utilization review decisions fall under the jurisdiction of the Workers' Compensation Appeals Board rather than being required to be submitted to an independent medical review doctor who has no expertise in the procedural requirements of said regulatory codes, and whose identity is, by current statute, not discoverable by any of the parties. IMPACT STATEMENT This resolution does not affect any other law, statute, or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: James W. Talley, Galyean Talley & Wood, 739 E. Pennsylvania Ave., Ste. A, Escondido, CA 92025, (760) 747-7500, jwtalley@sbcglobal.net RESPONSIBLE FLOOR DELEGATE: James W. Talley

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RESOLUTION 12-08-2015 DIGEST Labor and Employment: Substance of Wage Deduction Statements. Amends Labor Code section 226.3 to clarify that an employer will incur penalties whenever a wage deduction statement omits any of the information required by section 226, subdivision (a). RESOLUTIONS COMMITTEE RECOMMENDATION DISAPPROVE History: No similar resolutions found. Reasons: This resolution amends Labor Code section 226.3 to clarify that an employer will incur penalties whenever a wage deduction statement omits any of the information required by section 226, subdivision (a). This resolution should be disapproved because the plain language of section 226.3 already makes clear that penalties will be imposed whenever a wage deduction statement is defective, and no authority holds otherwise. Section 226, subdivision (a) of the Labor Code requires an employer to provide an employee with a wage deduction statement that contains nine specified items of information used to calculate the employee’s wages. Section 226.3 prescribes the penalties that may be imposed for violations of section 226, subdivision (a). The proponent asserts that section 226.3 is ambiguous as to whether it applies only when the employer provides no wage deduction statement at all, or whether it applies when an employer provides a merely defective statement, such as one that omits a required piece of information. This assertion is contrary to the plain language of section 226.3, which provides penalties whenever section 226, subdivision (a) is violated, and the latter section clearly requires the provision of all nine pieces of information in a wage deduction statement. Existing case law already requires employers to provide all of the information specified in section 226, subdivision (a). (See e.g., Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App. 4th 949, 961 [employer’s name and address omitted from wage statement].) The Labor Commissioner also construes section 226.3 as applying when a wage statement is defective in any respect, as discussed in Pelton v. Panda Rest. Group, Inc. (C.D. Cal. June 20, 2011) 2011 U.S. Dist. LEXIS 66108. This resolution is therefore unnecessary.

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TEXT OF RESOLUTION RESOLVED, that the Conference of California Bar Association recommends that legislation be sponsored to amend Labor Code section 226.3 to read as follows: §226.3 Any employer who violates subdivision (a) of Section 226 shall be subject to a 1 civil penalty in the amount of two hundred fifty dollars ($250) per employee, per 2 violation in an initial citation and one thousand dollars ($1,000) per employee for each 3 violation in a subsequent citation, for which the employer fails to provide the employee a 4 wage deduction statement, or fails to keep the records required in subdivision (a) of 5 Section 226, or fails to provide a wage deduction statement that includes all nine (9) 6 items required by subdivision (a) of Section 226. The civil penalties provided for in this 7 section are in addition to any other penalty provided by law. In enforcing this section, the 8 Labor Commissioner shall take into consideration whether the violation was inadvertent, 9 and in his or her discretion, may decide not to penalize an employer for a first violation 10 when that violation was due to a clerical error or inadvertent mistake. 11

(Proposed new language underlined; language to be deleted stricken.) PROPONENT: San Mateo County Bar Association STATEMENT OF REASONS The Problem: Currently, Labor Code section 226.3 contains ambiguities regarding whether its penalties apply to wage deduction statements that were provided but did not include all required items. The Solution: This Resolution would amend Labor Code Section 226.3 to conform to the Labor Commissioner’s interpretation of 226.3’s ambiguous language regarding the standard for a violation. Section 226.3 should be amended to eliminate any ambiguity. In Pelton v. Panda Rest. Group, Inc., the court noted that the Labor Commissioner’s counsel, writing on behalf of the Labor Commission to the California Court of Appeal, opined that §226.3 applies to any violation of §226, not just a failure to keep records or to provide a wage statement altogether, as 226.3’s language may suggest. (See Pelton v. Panda Rest. Group, Inc. (C.D. Cal. 2011) 2011 U.S. Dist. LEXIS 661082011 [referring to Letter from Anne Hipshman regarding non-party’s request to modify an appellate decision].) The alternative interpretation would, for example, not penalize an employer who provides a wage statement that includes only one of nine items required by Labor Code section 226(a). For instance, the wage statement might have the dates of the pay period, but no total of the hours, no pay rate, and no statement of deductions. The purpose of wage statements is to provide employees sufficient information to confirm proper payment. Employers who fail to provide this information, particularly the information Section 226(a) already mandates, should be penalized.

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IMPACT STATEMENT This proposed resolution amends California Labor Code section 226.3. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Stephen Noel Ilg, ILG Legal Office, 555 California Street, Suite 4925, San Francisco, CA 94104, 415-580-2574, e-mail: silg@ilglegal.com. RESPONSIBLE FLOOR DELEGATE: Stephen Noel Ilg

COUNTERARGUMENTS TO RESOLUTION 12-08-2015

BAR ASSOCIATION OF NORTHERN SAN DIEGO COUNTY All nine items list in Labor Code Section 226(a) do not apply to every employee and thus would not appear on every wage statement. For example, Section 226(a)(3) requires the wage statement to include number of piece-rate units earned and the applicable piece rate if the employee is paid on a piece-rate basis. However, most employees are not paid on a piece-rate basis. Thus, this resolution taken at its face value, would penalize employers for not including piece-rate information on a wage statement, even if the employee is not paid on a piece-rate basis. The solution would be to amend the resolution to require the wage deduction statement that includes all applicable items required by subdivision (a) of Section 226.

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RESOLUTION 12-09-2015

DIGEST Healthcare: Enable Employee Choice in Use of Sick Leave This resolution amends Labor Code section 233 to enable employees the choice to use their sick leave for themselves or their families under the Healthy Workplaces, Healthy Families Act. RESOLUTIONS COMMITTEE RECOMMENDATION APPROVE IN PRINCIPLE History: No similar resolutions found. Reasons: This resolution amends Labor Code section 233 to enable employees the choice to use their sick leave for themselves or their families under the Healthy Workplaces, Healthy Families Act. This resolution should be approved in principle because it grants employees the freedom to choose how to use their accrued sick leave. The existing Kin Care Laws, codified in Labor Code section 233 et seq., states that “[a]ny employer who provides sick leave for employees shall permit an employee to use in any calendar year the employee’s accrued and available sick leave entitlement, in an amount not less than the sick leave that would be accrued during six months at the employee’s then current rate of entitlement, to attend to an illness of a child, parent, spouse, or domestic partner of the employee.” (Lab. Code, § 233.) Thus, an employee may use a maximum of one-half of the accrued annual sick leave to care for an employee’s family member. The policy decision behind this limitation is to ensure that employees not exhaust all of their sick leave on family members, thereby leaving insufficient leave credit for when the employee becomes ill. This resolution would amend the new Healthy Workplaces, Healthy Families Act of 2014 (“Healthy Families Act”) to permit an employee to use one’s sick leave to care for family members without the limitations imposed by Labor Code section 233. While the resolution states its purpose is merely to clarify an ambiguity (i.e., that the Healthy Families Act inadvertently omitted the limiting provision of Labor Code section 233), the legislative history is silent on that point. Therefore, it cannot be conclusively stated that the omission was accidental. Nonetheless, this resolution should be approved because it would give the employee, rather than the Legislature, the choice of how and when to use the employee’s accrued sick leave. While there are sound policy reasons for section 233’s limitation: (i) ensure that a sick employee is not docked pay or forced to work because all sick leave is exhausted for the care of family members, or (ii) prevent the spread of illness when a sick employee (i.e., a server in a restaurant) is forced to work because all sick leave is exhausted to care for family members, these reasons should not strip an employee of the right to choose what is best for the employee and his or her family. One size does not fit all where healthcare is concerned. The ultimate decision on how an employee chooses to use the sick leave that the employee accrued should be left to the employee. This resolution is related to Resolution 12-02-2015.

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TEXT OF RESOLUTION RESOLVED that the Conference of California Bar Association recommends that legislation be sponsored to amend Labor Code section 233, to read as follows: §233 (a) Any employer who provides sick leave for employees shall permit an employee to use 1 in any calendar year the employee's accrued and available sick leave entitlement, in an amount 2 not less than the sick leave that would be accrued during six months at the employee's then 3 current rate of entitlement, to attend to an illness of a child, parent, spouse, or domestic partner 4 of the employee. All conditions and restrictions placed by the employer upon the use by an 5 employee of sick leave also shall apply to the use by an employee of sick leave to attend to an 6 illness of his or her child, parent, spouse, or domestic partner. This section does not extend the 7 maximum period of leave to which an employee is entitled under Section 12945.2 of the 8 Government Code or under the federal Family and Medical Leave Act of 1993 (29 U.S.C. Sec. 9 2606 et seq.), regardless of whether the employee receives sick leave compensation during that 10 leave. 11 (b) As used in this section: 12 (1) “Child” means a biological, foster, or adopted child, a stepchild, a legal ward, a child 13 of a domestic partner, or a child of a person standing in loco parentis. 14 (2) “Employee” does not include an employee covered by the Healthy Workplaces, 15 Healthy Families Act of 2014 pursuant to Labor Code section 245.5(a). 16 (23) “Employer” means any person employing another under any appointment or contract 17 of hire and includes the state, political subdivisions of the state, and municipalities. 18 (34) “Parent” means a biological, foster, or adoptive parent, a stepparent, or a legal 19 guardian. 20 (45) “Sick leave” means accrued increments of compensated leave provided by an 21 employer to an employee as a benefit of the employment for use by the employee during an 22 absence from the employment for any of the following reasons: 23 (A) The employee is physically or mentally unable to perform his or her duties due to 24 illness, injury, or a medical condition of the employee. 25 (B) The absence is for the purpose of obtaining professional diagnosis or treatment for a 26 medical condition of the employee. 27 (C) The absence is for other medical reasons of the employee, such as pregnancy or 28 obtaining a physical examination. 29 “Sick leave” does not include any benefit provided under an employee welfare benefit 30 plan subject to the federal Employee Retirement Income Security Act of 1974 (Public Law 93-31 406, as amended)1 and does not include any insurance benefit, workers’ compensation benefit, 32 unemployment compensation disability benefit, or benefit not payable from the employer’s 33 general assets. 34

(Proposed new language underlined; language to be deleted stricken) PROPONENT: The Bar Association of San Francisco

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STATEMENT OF REASONS The Problem: There is an ambiguity in the new Healthy Workplaces, Healthy Families Act of 2014 (“Paid Sick Leave law”) because it fails to address the pre-existing kin care law. Under the existing kin care law set forth in Labor Code section 233, “[a]ny employer who provides sick leave for employees shall permit an employee to use in any calendar year the employee’s accrued and available sick leave entitlement, in an amount not less than the sick leave that would be accrued during six months at the employee’s then current rate of entitlement, to attend to an illness of a child, parent, spouse, or domestic partner of the employee.” On the other hand, under Labor Code section 246.5 of the Paid Sick Leave law, employers must provide sick days for certain specified purposes, including “the diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.” There is no provision in the Paid Sick Leave law limiting use of paid sick leave for an employee’s ill family member to only half the annual entitlement (as required by the kin care law) or any other amount, and the Paid Sick Leave law does not reference the pre-existing kin care law. Accordingly, it appears that the full amount of paid sick leave may be used for any of the designated purposes in the Paid Sick Leave law, including caring for an employee’s family member. The Solution: This resolution addresses the problem by clarifying that the kin care law does not apply to employees not covered by Paid Sick Leave law. Employees covered by the Paid Sick Leave law will receive the benefit of being able to use the full amount of any accrued paid sick leave for any specified purpose, including caring for an ill family member. Employees excluded from coverage under the Paid Sick Leave law will have the benefit of the kin care law in Labor Code section 233, which allows them to use at least half their annual entitlement of sick leave to care for an ill family member. This bill is related to the 2015 BASF Resolutions on Paid Sick Leave Use and Paid Sick Leave Accrual. IMPACT STATEMENT This proposed resolution does not affect any other law, statute or rule. CURRENT OR PRIOR RELATED LEGISLATION Not known. AUTHOR AND/OR PERMANENT CONTACT: Cathleen S. Yonahara, Freeland Cooper & Foreman LLP, 150 Spear St., Ste. 1800, San Francisco, California 94105, telephone (415) 541-0200, facsimile (415) 495-4332, e-mail yonahara@freelandlaw.com. RESPONSIBLE FLOOR DELEGATE: Cathleen S. Yonahara

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COUNTERARGUMENTS TO RESOLUTION 12-09-2015

BAR ASSOCIATION OF NORTHERN SAN DIEGO COUNTY This amendment contradicts the intention of the Healthy Workplaces, Healthy Families Act of 2014, which specifically provides that its provisions are in addition to and independent of any other rights, remedies or procedures available under any other law and does not diminish, alter, or negate any other legal rights, remedies, or procedures available to an aggrieved person. (Labor Code §245(b).) The kin care law likewise provides that the rights and remedies are cumulative and nonexclusive and are in addition to any other rights or renewed afforded by contract or under other provisions of law. (Labor Code §233(f).) The legislature intended for both acts to be available to eligible employees. In addition, the kin care law provides for a private right of action against the employer (including recovery of reasonable attorneys’ fees); however, the Healthy Workplaces, Healthy Families Act of 2014 does not. If we want to address the inconsistency in the amount of sick leave that can be used at one time, that should be done in a resolution addressing that specific inconsistency, not by taking away the rights of most employees in California to seek a private right of action against an employer. ORANGE COUNTY BAR ASSOCIATION While the Healthy Workplaces, Healthy Families Act of 2014 (“the Act”) has arguably generated confusion in its application, nothing in the proposed resolution addresses the specific problem stated. In fact, the proposed amendment would have the chilling effect of making application of the Act or Labor Code section 233 a take-it-or-leave it proposition. There is no evidence – provided by the proponent, the Act or Labor Code section 233 – that the Legislature intended to exclude employees covered by the Act from being able to receive benefits provided under Labor Code section 233 or vice versa. The proponent makes no showing of how this specific change addresses the problem outlined. In the end, amending the statute as proposed serves only to create unintended exclusions and take away hard won protections.